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Jeffrey Mark Cole v. Kathy Allison

February 17, 2011

JEFFREY MARK COLE, PETITIONER,
v.
KATHY ALLISON, ACTING WARDEN,
RESPONDENT.



FINDINGS AND RECOMMENDATIONS ORDER AND

Petitioner is a state prisoner proceeding pro se with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 29, 2010, the undersigned ordered respondent to file a response to the petition. On June 24, 2010, respondent filed a motion to dismiss, arguing that petitioner's federal habeas application is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") because the claims in petitioner's second amended petition fail to relate back to any timely presented claims. Petitioner has not filed an opposition to that motion to dismiss.*fn1

BACKGROUND AND PROCEDURAL HISTORY

On January 31, 2005, a Sacramento County Superior Court jury found petitioner guilty of lewd and lascivious acts upon a minor child in violation of California Penal Code § 288(a). Pursuant to that conviction, on March 11, 2005, petitioner was sentenced to twelve years in state prison. On November 20, 2006, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. On December 6, 2006, petitioner filed a petition for rehearing. On December 19, 2006, the California Court of Appeal granted the petition for rehearing and affirmed the judgment once more but remanded the matter to the Sacramento County Superior Court with direction to amend the abstract of judgment to reflect that petitioner was not sentenced pursuant to California's two strikes law. (Resp't's Lodged Docs. 1, 9-11.)

On January 23, 2007, petitioner filed a petition for review in the California Supreme Court. On April 11, 2007, the California Supreme Court granted the petition and deferred the matter pending further order of the court. On September 12, 2007, the California Supreme Court remanded the matter to the California Court of Appeal with directions to vacate its decision and reconsider the matter in light of the decisions in People v. Black, 41 Cal.4th 799 (2007) and People v. Sandoval, 41 Cal.4th 825 (2007). On December 18, 2007, the California Court of Appeal affirmed petitioner's judgment once more. On January 28, 2008, petitioner filed another petition for review in the California Supreme Court. On March 12, 2008, the California Supreme Court denied review. Petitioner then filed a petition for writ of certiorari in the United States Supreme Court. On October 6, 2008, the United States Supreme Court denied that petition. (Resp't's Lodged Docs. 12, 14-15, 18-21, 26.)

Under the mailbox rule,*fn2 on August 21, 2009, petitioner commenced this action by filing with this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting the following four claims: (1) he never received his Miranda warnings before speaking with a detective, and parts of their conversation were later used at his trial to convict him; (2) the trial court admitted speculative evidence of him using "meth" and denied him a fundamentally fair trial; (3) the trial court improperly admitted evidence that petitioner possessed methamphetamine with intent to sell it; and (4) the trial court improperly admitted evidence that petitioner told a detective that he possessed drugs for sale. On September 21, 2009, this court dismissed that petition, granting petitioner leave to file an amended petition naming the proper respondent. On September 23, 2009, petitioner filed an amended petition, asserting only his first claim for relief, namely, that he never received his Miranda warnings before speaking with a detective and that parts of their conversation were later used at his trial to convict him. On October 27, 2009, the court ordered respondent to file a response to the amended petition.

On January 26, 2010, respondent filed a motion to dismiss the amended petition based upon petitioner's alleged failure to exhaust the claim for relief presented in the amended petition by fairly presenting it to the California Supreme Court before filing this federal habeas action. Because petitioner had not filed an opposition to that motion, the court issued an order to show cause and ordered him to file an opposition to that motion to dismiss within twenty-one days. Petitioner responded to the court's order by filing a letter explaining that he wished to proceed with this action but was not aware that he could not raise "new grounds" (i.e., unexhausted grounds) in his federal petition. Petitioner also noted that he wanted an extension of time to file a petition containing grounds for relief he had exhausted on direct appeal in state court. On April 2, 2010, this court advised petitioner that if he had not presented his sole federal habeas claim to the California Supreme Court as respondent argued in the motion to dismiss, he had not satisfied the exhaustion requirement with respect to his claim and would not be able to proceed on his amended petition. The court also advised him petitioner that if, on the other hand, he had fairly presented his sole federal habeas claim on direct appeal, he could proceed in this action but would need to file an opposition to respondent's motion. Finally, the court instructed petitioner to either file a request to amend his petition, together with a proposed second amended petition, or file an opposition to respondent's motion to dismiss.

On April 16, 2010, petitioner filed a second amended petition, asserting the following four grounds for federal habeas relief: (1) the trial court improperly admitted evidence that he told a detective that he possessed drugs for sale; (2) the trial court improperly imposed an aggravated base term and two consecutive sentences based on facts not plead by the government or admitted by petitioner; (3) the trial court improperly admitted evidence of his drug use even though that evidence was speculative and denied him a fundamentally fair trial; and (4) the trial court improperly imposed a sentence based upon the upper term with consecutive terms because no single aggravating factor was established.

On April 29, 2010, the court denied respondent's motion to dismiss petitioner's amended petition for failure to exhaust state court remedies as having been rendered moot by the filing of the second amended petition and ordered respondent to file a response to petitioner's second amended petition. As noted above, respondent has now filed a motion to dismiss the second amended petition as time-barred based on the argument that the claims set forth therein fail to relate back to any timely presented claims pending before the court. Again, petitioner has not filed an opposition to the most recent motion to dismiss.

RESPONDENT'S MOTION TO DISMISS

Counsel for respondent argues that petitioner's second amended federal habeas petition is time-barred. Specifically, counsel argues that petitioner concluded direct review of his judgment of conviction on October 6, 2008, when the United States Supreme Court denied his petition for writ of certiorari. For purposes of federal habeas review, counsel contends that petitioner had until October 6, 2009, to file his petition with this court. Counsel argues that petitioner did not file his second amended petition until April 23, 2010, after the one-year statute of limitations for doing so had expired, and that none of his current claims for habeas relief "relate back" to the claims contained in his previously filed federal habeas petitions. (Resp't's Mot. to Dismiss at 7-12.)

With respect to petitioner's current second and fourth claims for habeas relief, counsel argues that petitioner challenges his sentence for the first time in these proceedings. In this regard, counsel contends that petitioner's second and fourth claims do not "relate back" to any previously presented pending claims. With respect to petitioner's current first and third claims for federal habeas relief, counsel argues that petitioner may believe that these claims "relate back" to the second, third, or fourth claims set forth in his original petition filed with this court. However, counsel argues that the claims contained in petitioner's original federal petition were not pending when he filed his second amended petition. Rather, in counsel's view, petitioner abandoned his original second, third, and fourth claims when he filed his amended petition asserting only one claim for habeas relief relating only to the argument that he never received his Miranda warnings before speaking with a detective. Finally, counsel argues that it is not possible for petitioner's first and third claims to relate back to that sole claim for habeas relief set out in his amended federal petition because that claim had not been properly exhausted at the time the amended petition was filed. (Resp't's Mot. to Dismiss at 7-12.)

ANALYSIS

I. The AEDPA Statute of Limitations

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA amended 28 U.S.C. ยง 2244 ...


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