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Kenneth Hill v. J. Walker


February 28, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Petitioner is a state prisoner proceeding without counsel and in forma pauperis, with an application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss, arguing that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner has filed an opposition. Both parties have consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c). For the reasons set forth herein, the court grants respondent's motion to dismiss.

I. Procedural Background

On April 13, 2005, petitioner was convicted in Sacramento County Superior Court

of making terrorist threats. The trial court applied two sentencing enhancements, and on June 24, 2005, petitioner was sentenced to a determinate term of sixteen years in prison. See Abstract of Judgment, Petition p. 65.*fn1

Petitioner appealed his conviction and sentence, culminating in the California Supreme Court's denial of review on November 29, 2006. Id. at 7. Petitioner also filed a petition for writ of certiorari in the United States Supreme Court. It was denied on October 1, 2007. Id. at 9.

While his petition for certiorari was still pending, petitioner initiated the state habeas process by filing a petition for post-conviction relief in Sacramento County Superior Court on July 18, 2007. See Lodged Document 11. The Superior Court denied the petition with a detailed opinion and order on the merits on September 4, 2007. See Lodged Doc. 12. Petitioner filed a motion for reconsideration in Superior Court; the court issued another detailed denial of the motion on October 29, 2007. See Lodged Docs. 13 and 14. Petitioner then proceeded through the next two levels of the state habeas process, ending in the California Supreme Court's denial of his petition on August 20, 2008. See Lodged Docs. 15-18.

On October 3, 2008, petitioner initiated a second round of the state habeas process by filing another petition for post-conviction relief. That petition asserted three claims: (1) new evidence showed a witness' trial testimony about petitioner's gang membership was false; (2) the prosecution failed to disclose material evidence favorable to the defense; and (3) ineffective assistance of defense counsel. See Lodged Doc. 19. Only the claim of new evidence presented an issue that had not been presented in the first round of the habeas process. The new evidence was a recantation by a witness who had testified at trial that petitioner "'claimed to be from the Nogales Gangster Crips' during the commission of the offense." Order of Sacramento County Superior Court, Lodged Document 20 at 3. The witness later signed an affidavit in which she swore that she "'gave these statements and testimony under duress from the prosecution and

Child Protective Services and in exchange for payments.'" Id. at 2.

On February 6, 2009, the Superior Court ruled that "[i]t is clear that the petition is successive and untimely." Lodged Doc. 20, p. 1. Petitioner continued his second round of habeas petitions through the remaining two stages, ending in the California Supreme Court's summary denial on August 26, 2009. See Lodged Docs. 21-24. He filed this federal habeas action on October 1, 2009.

II. Timeliness Under 28 U.S.C. § 2244(d)

Respondent argues that the petition is untimely. Under the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The statute of limitations applies to all federal habeas petitions filed after the statute was enacted on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). That statute provides, in relevant part:

(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.

28 U.S.C. § 2244(d).

Under § 2244(d)(1)(A), the time for petitioner to file a federal habeas petition

began when his judgment of conviction became final. Here, petitioner's judgment of conviction became final when the U.S. Supreme Court denied petitioner's application for writ of certiorari on October 1, 2007. See Clay v. U.S., 537 U.S. 522, 529 n.4 (2003). However, the statute of limitations is tolled during the pendency of any "properly filed" state collateral attack on the judgment. 28 U.S.C. § 2244(d)(1); Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). In this case, petitioner had already started the habeas process in Sacramento County Superior Court when his judgment of conviction became final. In fact, petitioner had already been denied at the first level on September 4, 2007, nearly a month before his petition for writ of certiorari was denied on October 1. Two days later, he filed his motion for reconsideration in Superior Court.

Respondent is correct that petitioner's filing the state habeas petition in Superior Court before his conviction became final has no effect on the timeliness of the federal petition. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008). Respondent does not argue that the one day between the denial of certiorari on October 1, 2007, and the filing of the motion to reconsider in Superior Court on October 3 counts against petitioner as the day on which the statute of limitations began to run. Motion to Dismiss, p. 5. Thus, there is no argument that the statute was tolled while the first petition was pending in Superior Court. Furthermore, respondent rightly concedes that "[b]ecause Petitioner was proceeding in both an orderly and timely fashion with the filing of his second and third state petitions, he is also entitled to interval tolling." Id.; Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (reiterating the rule that the intervals between stages of California's "unusual system of collateral review" will toll the federal limitations period so long as the intervals are each of reasonable duration). The parties therefore do not dispute that the limitations period was tolled without interruption for 324 days, from October 2, 2007, the day after the U.S. Supreme Court denied certiorari, through August 20, 2008, the date the California Supreme Court denied the third state petition. Id. at 6. Absent further tolling, the one-year limitations period began the next day, August 21, 2008, and ended August 20, 2009.

Petitioner did not initiate this federal action until October 3, 2009 -- forty-three days too late. The federal petition enumerates eleven separate claims, including the three that petitioner asserted in his second round of habeas petitions in federal court. Petitioner does not contend that any of the claims that appeared only in the first round of state habeas petitions are still timely. Therefore, the only question remaining is whether his second round of state habeas petitions, which lasted from October 3, 2008, until August 26, 2009, can toll the limitations period for the three claims he pursued therein.

III. Analysis

First, "periods between different rounds of collateral attack are not tolled." Banjo,

614 F.3d at 969. Therefore, petitioner cannot avail himself, for purposes of tolling, of the time that elapsed between his two rounds of state habeas applications.

Second, if a state court petition fails because it is untimely under state rules, it is not "properly filed" within the meaning of the federal statute of limitations and cannot count toward any tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 414-15 (2005). As noted above, the Superior Court expressly ruled that the petition filed October 3, 2008 (petitioner's fourth attempt at post-conviction relief), was "successive and untimely." Lodged Doc. 20 at 2. "When a post-conviction petition is untimely under state law, 'that is the end of the matter' for purposes of § 2244(d)(2)." Id. at 414 (citation omitted); Banjo, 614 F.3d at 968 ("[a] California court's determination that a filing was untimely... is dispositive"). The Superior Court's clear finding of untimeliness bars petitioner from any further tolling while his second round of collateral attacks //// //// //// was ongoing.*fn2

Faced with the Supreme Court's clear direction in Pace, petitioner counters that California's rule on the timeliness of habeas petitions is not applied regularly or consistently enough to qualify as an independent and adequate bar to his federal petition. See Opposition at 2 (citing Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996)). This argument was very recently foreclosed by the U.S. Supreme Court. In Walker v. Martin, 562 U.S. ___ (Feb. 23, 2011), the Court reiterated that a procedural bar under state law prohibits subsequent federal review if "the state judgment rests on independent and adequate state procedural grounds." Walker, 562 U.S., at ___ (slip op., at 7) (internal quotation marks and citation omitted). "To qualify as an 'adequate' procedural ground, a state rule must be 'firmly established and regularly followed.'" Id. (citation omitted). The Court then held that "California's time rule [in state habeas cases], although discretionary, meets the 'firmly established' criterion..." Id. at 8. The Court further found that California's discretionary rule meets the second requirement of an adequate state ground: "Nor is California's time rule vulnerable on the ground that it is not regularly followed." Id. at 10.

It appears that the court in Walker did not take up the issue of whether California's time rule for habeas cases is an "independent" state ground that bars federal habeas relief. Petitioner suggests that the Superior Court's finding of untimeliness was not an independent ground because it depended on certain factual determinations about the prejudice, if any, petitioner suffered from the allegedly false testimony at trial. This suggestion is mistaken: those factual determinations in no way implicate any federal ground of relief such that the Superior Court's application of the time rule could not be "independent." As petitioner correctly

puts it, "[t]o be 'independent,' the state law basis for the decision cannot be interwoven with federal law." Opposition at 2 (citing Harris v. Reed, 489 U.S. 255 (1989)). Here, there is no ambiguity about the "independent" basis of the Superior Court's decision: the court's opinion is completely devoid of any mention or suggestion of a federal ground for denying petitioner relief.

The Court's opinion in Walker left open the possibility that "[a] state ground . . . may be found inadequate when 'discretion has been exercised to impose novel and unforseeable requirements without fair or substantial support in prior state law[.]" Id. at 12. Petitioner does not make such an objection. Instead, petitioner objects that the state court "conduct[ed] an unreasonable consideration of the claims for an exception to these procedural bars." Opposition,

p. 2. An argument that the state court was unreasonable in not finding an exception to the timeliness requirement does not present the court's decision as a "novel and unforseeable" exercise of discretion. Such an argument simply asks the federal court to review the state court's application of California's procedural default rules to the facts in this particular habeas case. "Federal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules." Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999). The state court assessed petitioner's claim of new evidence according to the state's well established criteria of good cause for delay and prejudice to the petitioner at trial. This court is bound to accept the state court's conclusion that petitioner's new evidence was not credible, that no prejudice accrued to petitioner during trial, and therefore no exception to the state's time requirement applied.

Finally, the Superior Court summarily found that petitioner's second and third claims in his second round of habeas petitions were successive and untimely. See Lodged Doc. 20 at 5-6. Those findings bar federal habeas review of both claims with equal force: like the first claim of new evidence, they are due no tolling. Without any tolling for the three claims presented in the second round of state habeas challenges, the entire petition filed here is untimely. Therefore, it will be dismissed.

Accordingly, IT IS HEREBY ORDERED that the motion to dismiss (Dkt. # 10) is granted. The petition for a writ of habeas corpus is denied as untimely under 28 U.S.C. § 2244(d). No certificate of appealability is issued. The Clerk of Court shall designate this case "closed."


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