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Phanhaha Xabandith v. Francisco Jacquez*Fn1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 31, 2011

PHANHAHA XABANDITH, PETITIONER,
v.
FRANCISCO JACQUEZ*FN1 ,
RESPONDENT.

ORDER ANDFINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss the petition as untimely filed. Petitioner has filed an opposition to that motion and respondent has filed a reply.

BACKGROUND

Petitioner challenges a 2006 judgment of conviction entered against him in the Sacramento County Superior Court on charges of assault with an assault weapon (Cal. Penal Code § 245(a)(3)), shooting from a motor vehicle (Cal. Penal Code § 12034(c)), possession of an assault weapon (two counts) (Cal. Penal Code § 12280(b)), and being a felon in possession of a firearm (three counts) (Cal. Penal Code § 12012(a)(1)). The jury also found various enhancement allegations to be true. (Petition at 1; Resp't's Lod. Doc. 1.) Petitioner was sentenced to a determinate state prison term of thirty years and four months consecutive to an indeterminate state prison term of twenty-five years to life in prison. (Resp't's Lod. Doc. 1.)

Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On May 2, 2007, the state appellate court affirmed the judgment of conviction. (Resp't's Lod. Doc. 2.) Petitioner then sought review in the California Supreme Court, which was denied on July 11, 2007. (Resp't's Lod. Doc.3-4.)

Petitioner subsequently filed three post-conviction collateral challenges in the state courts.*fn2 On June 30, 2008*fn3 , petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Resp't's Lod. Doc. 5.) On August 15, 2008, that court denied the petition on the merits. (Resp't's Lod. Doc. 6.) On December 27, 2008, petitioner constructively filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 7.) On January 8, 2009, the California Court of Appeal summarily denied the petition. (Resp't's Lod. Doc. 8.) On February 20, 2009. petitioner constructively filed a petition for writ of habeas corpus in the California Supreme Court. (Resp't's Lod. Doc. 9.) The California Supreme Court summarily denied that petition on August 12, 2009, In re Swain, 34 Cal. 2d 300, 304 (1949). (Resp't's Lod. Doc.10.)

On August 29, 2009, petitioner signed his federal habeas petition and it was filed by this court on September 4, 2009. (Doc. No. 1.) On November 20, 2009, petitioner filed an amended petition which is the operative petition in this action. (Doc. No. 12.)

PARTIES' ARGUMENTS

Respondent contends that the one-year statute of limitation for the filing of a federal habeas petition in this case began to run on October 9, 2007, when petitioner's judgment of conviction became final, and continued to run for 265 days until June 30, 2008, the date on which petitioner filed his habeas petition with the Sacramento County Superior Court. (Resp't's Mot. to Dismiss (hereinafter "MTD") at 3-4.) Respondent argues that petitioner is not entitled to statutory tolling for the 134-day period between the Sacramento County Superior Court's denial of that petition on August 15, 2008 and his filing of his habeas petition with the California Court of Appeal on December 27, 2008, because, according to respondent, petitioner's delay in filing the latter petition was unreasonable. (Id. at4-5.)

Respondent concedes that the one-year limitations period for seeking federal habeas relief was statutorily tolled for 47 days during the pendency of the habeas petition before the Sacramento County Superior Court. Accordingly, respondent asserts that the last day for petitioner to file a timely federal habeas petition in this case was November 25, 2008. (Id. at 5.) Because petitioner's second and third state habeas petitions were filed after that date, respondent argues, they do not extend or toll the running of the AEDPA limitations period. (MTD at 5-6.) Thus, respondent concludes, the instant petition was filed over nine months after the statute of limitations expired and is time-barred. (Id. at 5.)

In opposing the motion to dismiss, petitioner claims that he is entitled to statutory tolling of the limitations period "for the period between the June 30, 2008 filing of his first habeas petition in superior court and the August 12, 2009 denial by the California Supreme Court of the final petition[,]" a total of approximately fourteen months. (Opposition to MTD (hereinafter "Opp.") at 4.)

Petitioner also alleges that "he was denied access to his legal materials from May 26, 2008 through December 2, 2008" and is thus entitled to equitable tolling of the AEDPA statute of limitations during that period. (Id.) Specifically, petitioner represents that "[d]uring the applicable time period" he "was doing extensive legal research and investigation" and that, on May 26, 2008, "the investigation was halted due to [petitioner's] placement in administrative segregation where he was denied access to his legal materials for significant periods of time." (Opp. at 2.) As a result, petitioner states he "had no choice but to file" his first state habeas petition in the Sacramento County Superior Court "with what he could recall from his memory." (Id.) Petitioner further claims that, while in administrative segregation, he "requested [] his legal materials numerous times, which was denied, and caused a four month gap" before filing his habeas petition in the court of appeal. (Id.) Given the applicability of statutory and/or equitable tolling, petitioner argues, the habeas petition filed with this court was submitted in a timely fashion and respondent's motion to dismiss should be denied.

STATUTE OF LIMITATIONS UNDER THE AEDPA

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

The AEDPA statute of limitations is tolled during the time a properly filed application for post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). The statute of limitations is not tolled during the interval between the date on which a decision becomes final and the date on which the petitioner files his first state collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once state collateral proceedings are commenced, a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between petitions are "reasonable." See Evans v. Chavis, 546 U.S. 189, 192 (2006); Carey v. Saffold, 536 U.S. 214, 222-24 (2002).

In reviewing habeas petitions from California, the Ninth Circuit formerly employed a rule that where California courts did not explicitly dismiss a habeas petition for lack of timeliness, the petition was presumed timely. The United States Supreme Court has now rejected this approach and requires the lower federal courts to determine whether a state habeas petition was filed within what California would consider a reasonable period of time. Chavis, 546 U.S. 189. When a state post-conviction petition is determined to be untimely by a state court, that is the end of the matter for purposes of § 2244(d)(2). Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408 [, 414], 125 S. Ct. 1807, 1812 (2005)); see also Carey, 536 U.S. at 226. However, in the absence of a clear indication that petitioner's state habeas petitions were denied as untimely, this court is now charged with the duty of independently determining whether petitioner filed his state habeas petitions within what California would consider a reasonable time. Chavis, 546 U.S. at198.

ANALYSIS

As noted above, petitioner's judgment of conviction became final on October 9, 2007. The AEDPA statute of limitations for the filing of a federal habeas petition began to run on October 10, 2007 and continued to run for 265 days until petitioner filed his first state petition for habeas relief in the Sacramento County Superior Court on June 30, 2008.

Petitioner claims that the one-year limitations period for seeking federal habeas relief should be statutorily tolled throughout the pendency of all his state court habeas proceedings, i.e., between June 30, 2008 and August 12, 2009, when the California Supreme Court denied his third and final state petition. As noted, respondent concedes that the statute of limitations was statutorily tolled for 47 days while petitioner's petition was pending before the Sacramento County Superior Court . However, the parties disagree as to the tolling effect of the 134-day interval between the Superior Court's decision to deny relief on August 15, 2008 and petitioner's filing of his habeas petition with the California Court of Appeal on December 27, 2008. Upon consideration, the undersigned concludes that the AEDPA limitations period was statutorily tolled during this interval.

In reaching this conclusion, the court has taken into account the following. In Chavis the U.S. Supreme Court acknowledged that in California, a state prisoner may seek review of an adverse lower court decision by filing a habeas petition in a higher court, and that such a petition is timely if it is filed within a "'reasonable time.'" 546 U.S. at 192-93. In deciding in that case whether the three-year interval between the California Court of Appeal's denial of habeas relief and the petitioner's filing of a habeas petition with the California Supreme Court was reasonable, the Supreme Court concluded that in "viewing every disputed issue most favorably to Chavis, there remains a totally unexplained, hence unjustified, delay of at least six months." 546 U.S. at 201. In that context, the Supreme Court stated as follows:

Six months is far longer than the "short period[s] of time," 30 to 60 days, that most States provide for filing an appeal to the state supreme court. Saffold, supra, at 219, 122 S. Ct. 2134. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court, see Cal. App. Ct. Rule 28(e)(1) (2004). We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay "reasonable." Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word "pending" as interpreted in Saffold.

Id. Thus, "Evans made clear that an unexplained delay of six months between the denial of one California state court and a new filing in a higher California court was too long to permit tolling of the federal limitations period on the ground that state court proceedings were 'pending.'" Waldrip v. Hall, 548 F.3d 29, 735 (9th Cir. 2008). However, "whether an unexcused delay, of greater than 30 to 60 days but less than six months, in filing a California state habeas petition would be considered 'reasonable' by the California courts, has been left to the lower federal courts to determine on habeas review." Sigmon v. Kernan, No. CV 06-5807 AHM (JWJ), 2009 WL 1514700 at *5 (C.D. Cal. May 27, 2009).*fn4

The Supreme Court's acknowledgment that such a determination may be difficult is well supported.*fn5 As the Ninth Circuit has noted:

California's timeliness rule bars habeas petitions that are filed after "substantial delay." A habeas petitioner in California must justify any "significant" or "substantial" delay in seeking habeas corpus relief. Clark, 21 Cal. Rptr. 2d 509, 855 P.2d at 738, 750-51. There are no standards for determining what period of time or factors constitute "substantial delay" in non-capital cases. There are also no standards for determining what factors justify any particular length of delay.

***

Clark did nothing to clarify the application of the basic "substantial delay" standard with regard to non-capital cases. Furthermore, the Clark exceptions, specifying when review can be granted despite "substantial delay," do nothing to clarify the "substantial delay" standard itself.

King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 2006). More recently, the Ninth Circuit has held that unexplained delays of 101, 115 and 146 days by California prisoners in seeking state habeas relief from the next highest state court is unreasonable for purposes of statutory tolling of the AEDPA statute of limitations. Chaffer v. Prosper, 592 F.3d 1046, 1048 & n.1 (9th Cir. 2010) (noting that the California Supreme Court denied certification of the question when the Ninth Circuit sought guidance on the issue under California law); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010). Although devoid of analysis of California law with respect to that State's indeterminate timeliness rule, this court is bound by these decisions.*fn6

In considering whether California courts would have found the habeas petition at issue in this case untimely had they elected to consider the issue, the undersigned finds it is also important to note that petitioner's case is not a capital case. This is because California has been most concerned with the timeliness of habeas petitions in capital cases, providing a presumptive time period for timeliness applicable only to such cases. See Chavis, 546 U.S. at 202 & 209 (Stevens, J., concurring) (quoting Cal. Rules of Court Policy Statement 3, std. 1-1.1 (Deering 2005) ("A petition for a writ of habeas corpus [in a capital case] will be presumed to be filed without substantial delay if it is filed within 180 days after the final due date for the filing of appellant's reply brief on the direct appeal . . . .")). However, "California's time limit for the filing of a habeas corpus petition in a non-capital case is more forgiving and more flexible than that employed by most states." Chavis, 546 U.S. at 202 (Stevens, J., concurring).

Here, the 134 days between the Sacramento County Superior Court's denial of petitioner's habeas petition and the filing of his next petition with the California Court of Appeal is less than the six month period of unexplained delay that the U.S. Supreme Court in Chavis found to be unreasonable but more than the 101 and 115 days found to be unreasonable, if unexplained, by the Ninth Circuit in Chaffer. Because under binding Ninth Circuit authority a 134-day period of unexplained delay between state habeas filings must be found "unreasonable" under California law, this court must now turn to the questions of whether the delay has been satisfactorily explained. See Gutierrez, 2008 WL 4822867 at *6; Sigmon, 2009 WL 1514700 at *5. If so, the petition filed with the California Court of Appeal would be deemed timely by California courts applying that State's indeterminate timeliness rule which, in turn, would entitle petitioner to statutory tolling of the entire period that he was pursuing habeas relief in state court.

Here, petitioner has provided an explanation for his 134-day delay in pursuing his state habeas remedies. In this regard, he represents that he was "denied access to his legal materials from May 26, 2008 through December 2, 2008" while confined in administrative segregation, thereby delaying him in proceeding to the next highest state court seeking habeas relief. (Opp'n at 4.) Indeed, respondent does not dispute that petitioner spent the first 109 days of the 134-day period at issue in administrative segregation, and that he filed his habeas petition with the California Court of Appeal less than one month after being released from administrative segregation. (See Reply to Opp. (hereinafter "Reply") at 2-3; id., Ex. A.) Rather, respondent argues that because petitioner was able to file his habeas petition in the Sacramento Superior Court while in administrative segregation, and because petitioner made several documented requests to access legal materials and the law library during the time he was confined in administrative segregation, the restrictive conditions of his confinement during that period does not "reasonably" explain the 134-day gap in his pursuit of his state habeas remedies. (See Reply, Exs. B (petitioner's requests for legal materials dated June 17, 2008 and August 21, 2008); C (petitioner's five requests for law library access dated September through November 2008).) Respondent contends that these "records show that Petitioner was not denied access to legal materials or the law library during this period." (Reply at 4.)

From these exhibits, it does appear that petitioner was provided access to the prison law library on occasions during the relevant period of time. (Id., Ex. C (indicating petitioner received requested law library access on October 3, October 27, November 6, November 26, and December 16, 2008). However, petitioner also represents that during his confinement in administrative segregation he sought access to "his" legal materials numerous times and was denied such access. (Opp'n at 2) The record before this court does not indicate when, if ever, petitioner was granted access to his legal materials during this time. (See Reply, Ex. B.) Indeed, if anything, petitioner's numerous documented requests for legal materials and law library access during the relevant time period tend to show his diligence in attempting to pursue habeas relief in the state courts, despite the restrictive conditions of his confinement. Finally, it is noteworthy that petitioner was proceeding pro se the entire time he was seeking collateral relief. Therefore, during periods when he was denied access to his legal materials there could be no progress made in preparing his next state habeas petition.

As one court has noted "[t]he United Supreme Court has also implied that a delay may be excused if the prisoner was unable to access the prison law library due to scheduling conflicts or prison lockdowns." Gutierrez, 2008 WL 4822867 at *5. Accordingly, the undersigned concludes that had California courts elected to consider the issue, they would have concluded in light of petitioner's explanation for any delay that his habeas petition was timely filed with the California Court of Appeal. See In re Crockett, 159 Cal. App. 4th 751, 757 (2008) ("A petitioner seeking relief on habeas corpus need only file a petition without substantial delay, or if delayed, adequately explain the delay."); see also Warburton v. Walker, 548 F. Supp. 2d 835, 840 (C.D. Cal. 2008) (concluding that the petitioner was entitled to statutory "gap" tolling of the AEDPA statute of limitations because his "69-day delay between the Superior Court's denial of his habeas corpus petition and [his] subsequent filing of his habeas corpus petition in the California Court of Appeals appears to be reasonable since, after his unsuccessful petition to the Superior Court, petitioner refined his arguments and provided further factual and legal support for his claims in his petition to the Court of Appeal."); Richardson v. Cate, No. C 09-02227 WHA, 2010 WL 1486476, at *2-3 (N.D. Cal. Apr. 13, 2010) (135-day gap between Superior Court denial and petitioner's habeas filing with the California Court of Appeal was adequately explained and justified for statutory polling purposes by, among other factors having to do with his counsel's circumstances, petitioner's placement in administrative segregation and a mental health ward during that time). Accordingly, this court will recommend that the 134-day period between petitioner's state habeas proceedings in the Sacramento County Superior Court and the California Court of Appeal be statutorily tolled.

The court also concludes that the 43-day interval between the California Court of Appeal's denial of petitioner's habeas petition on January 8, 2009 and petitioner's filing of a habeas petition in the California Supreme Court on February 20, 2009 constitutes a reasonable delay subject to statutory tolling. See Chavis, 546 at 201 (noting the "30 to 60 days, that most States provide for filing an appeal to the state supreme court"). In sum, petitioner is therefore entitled to tolling of the entire 408-day period from his filing of his first state habeas petition on June 30, 2008 to the denial of his third and final state habeas petition on August 12, 2009, during which he was reasonably pursuing his post-conviction remedies in the state courts without substantial, unexplained delay.

With the statutory tolling of the nearly 14 months in question, it is clear that the pending federal petition was timely filed. Accordingly, respondent's motion to dismiss should be denied.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of Court is to substitute Francisco Jacquez, Acting Warden of Pelican Bay State Prison, as respondent in this case.

IT IS HEREBY RECOMMENDED that:

1. Respondent's April 12, 2010 motion to dismiss the habeas petition as untimely (Doc. No. 17) be denied; and

2. Respondent be ordered to file an answer.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DAD:3 xaba2550..mtd


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