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Dorian D. Bailey v. Greg Lewis*Fn1

August 18, 2011

DORIAN D. BAILEY, PETITIONER,
v.
GREG LEWIS*FN1 , RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner, a state prisoner represented by counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he alleges that the trial court's imposition of upper term sentences for various sex offense convictions violated his Sixth Amendment right to a jury trial. (Dkt. No. 1 (hereinafter "Ptn." at 4, 10-11*fn2 ). The petition also raises due process issues with respect to petitioner's claimed mental health problems before and during trial. (Id. at 4, 7-8.) At issue is respondent's September 13, 2010 motion to dismiss, arguing that petitioner's federal habeas application is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner has filed an opposition to the motion, and respondent has filed a reply.

BACKGROUND

In 2004, a jury convicted petitioner of thirteen counts charging various sex offenses and one count of first degree robbery. The jury also found charged enhancements to be true. On July 9, 2004, the Sacramento County Superior Court imposed an aggregate unstayed sentence of two consecutive terms of 25 years to life plus 54 years. (Lod. Doc. 1; Lod. Doc. 2 at 1-2.)

On May 26, 2006, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lod. Doc. 2.) Petitioner sought review in the California Supreme Court (Lod. Doc. 3), which was denied on August 16, 2006 "without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 06-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law." (Lod. Doc. 4.) On November 3, 2006, Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was granted on February 20, 2007. The Supreme Court vacated the judgment and remanded for further consideration in light of Cunningham v. California, 549 U.S. 270 (2007). (Lod. Doc. 5.) On August 15, 2007, the California Court of Appeal, Third Appellate District, affirmed petitioner's sentence on remand. (Lod. Doc. 6, Ex. A.) On September 26, 2007, petitioner filed a second petition for review in the California Supreme Court, which was summarily denied on October 31, 2007. (Lod. Docs. 6, 7.)

Petitioner subsequently filed one state post-conviction collateral challenge. On January 29, 2009, he filed an application for writ of habeas corpus in the Sacramento County Superior Court. (Lod. Doc. 8.) On March 6, 2009, the superior court denied the petition, citing In re Robbins, 18 Cal. 4th 770, 811-812 (1998); and In re Clark, 5 Cal. 4th 750, 774-75 (1993). (Lod. Doc. 9.)

Petitioner filed the instant action on January 11, 2010. (Dkt. No. 1.) Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058--59 (9th Cir. 2010). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could have submitted his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n. 2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). Here, petitioner signed the petition on November 16, 2009, nearly two months before the petition was docketed. (Ptn. at 6.) While it is not clear that petitioner handed the petition over to prison authorities on this date -- or, if so, why the petition was not actually filed until mid-January 2010 -- the court will deem the petition constructively filed on November 16, 2009.

MOTION TO DISMISS

Respondent moves to dismiss the pending habeas petition, arguing that it is time-barred under AEDPA. Specifically, respondent argues thatpetitioner's judgment of conviction became final on January 29, 2008, and petitioner had one year thereafter in which to file a federal habeas petition challenging that decision. (Dkt. No. 20 (hereinafter "MTD") at 3-4.)

Respondent acknowledges that the proper filing of a state post-conviction application presenting the pertinent claims tolls the statute of limitations period. 28 U.S.C. § 2244(d)(2). However, respondent contends that petitioner did not properly file any state collateral actions within the limitations period. As to plaintiff's state habeas petition filed in the Sacramento County Superior Court on January 29, 2009, respondent contends that, because the superior court found the petition untimely, it was not "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2) and therefore did not toll the federal limitations period.Respondent further contends that, even if the limitations period was tolled during the pendency of petitioner's state habeas petition, the instant action nonetheless was filed several months after the limitations period expired.

In opposition to the motion to dismiss, petitioner does not dispute respondent's statutory tolling analysis, but argues that the limitations period should have been equitably tolled due to petitioner's lifelong mental illness and the "strong medications" he was taking during the relevant time period. Petitioner claims, through counsel, that these conditions rendered him mentally unable to prepare his federal habeas petition or to timely assist in its preparation and filing. (Dkt. No. 27 (hereinafter "Opp.") at 5-6.) Petitioner also asserts that "problems with slow prison mail" and petitioner's transfers between prisons and to a hospital, respectively, interfered with his ability to send and receive mail during the relevant period. (Id. at 5.)

In reply, respondent asserts that petitioner's "mental health records during his incarceration do not reflect a mental disorder of a severity that would prevent him from filing a timely federal petition." (Dkt. No. 36 (hereinafter "Reply") at 4.) Respondent also asserts that petitioner was not so diligent in pursuing his federal claims as to warrant equitable tolling of the AEDPA limitations period. (Id. at 5-6.)

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 ...


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