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Chester T. Owen v. Timothy E. Busby

September 2, 2011

CHESTER T. OWEN,
PETITIONER,
v.
TIMOTHY E. BUSBY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Chester W. Owen, Jr. (hereinafter "Owen"), a state inmate proceeding pro se, filed a federal petition for writ of habeas corpus on August 3, 2010. [ECF No. 1.]*fn1 Timothy E. Busby, Warden of Ironwood State Prison (hereinafter "Respondent"), filed a Motion to Dismiss on November 9, 2010. [ECF No. 30.] While other documents have been mailed to the Court since the motion was filed, Owen has not filed an opposition to the Motion to Dismiss.

Because the federal habeas petition was filed more than two years after the state conviction became final, Respondent's Motion to Dismiss is granted.

II. FACTUAL AND PROCEDURAL HISTORY

A. The Commitment Offense and Direct Review

On November 10, 2005, a San Diego County jury convicted Owen of one count of inflicting corporal injury upon a spouse, Cal. Penal Code § 273.5(a), one count of battery, Cal. Penal Code § 242, and three counts of forced oral copulation, Cal. Penal Code § 288(a)(c)(2). (Lodgment 1 at 776.) The San Diego Superior Court sentenced Owen to serve 26 years incarceration in state prison.*fn2 (Id. at 703.)

Owen appealed the superior court's conviction, and on December 6, 2007, the California Court of Appeal affirmed the judgment.*fn3 (Lodgment 16.) On January 11, 2008, Owen filed a petition for review in the Supreme Court of the State of California. (Lodgment 17.) The court denied the petition on February 13, 2008. (Lodgment 18.)

B. Habeas Corpus Filings*fn4

1. First Habeas Filing: Superior Court

Owen filed his first petition for writ of habeas corpus in superior court, case number EHC629, on February 5, 2008. (Lodgment 19.) The court denied the petition on March 27, 2008 because Owen failed to state a prima facie case for his ineffective assistance of counsel claim (Lodgment 20 at 8) and the other issues Owen presented could only be raised in a timely appeal.*fn5

(Id. at 3.)

2. Second Habeas Filing: Superior Court

Owen filed a second petition for writ of habeas corpus on July 8, 2008 in superior court, case number EHC650.*fn6 (Lodgment 21.) The court summarily denied the petition on August 26, 2008 because the claims in this petition mirrored the claims in Owen's first petition.*fn7 (Lodgment 22 at 3-4.)

3. Third Habeas Filing: Court of Appeal

On October 15, 2008, Owen filed a petition for writ of habeas corpus in the court of appeal, case number D053918. (Lodgment 23.) The court denied the petition on November 13, 2008, noting his conviction had already been adequately reviewed on appeal, and a majority of his claims could have been, but were not, raised on appeal. (Lodgment 24.)

4. Fourth Habeas Filing: Superior Court

Owen then filed a fourth habeas corpus petition with the superior court, case number EHC686, on February 5, 2009. (Lodgment 25.) The court denied Owen's petition on February 26, 2009 classifying it as a request for reconsideration of "either [his] first or second petition, or both." (Lodgment 26 at 2-3.) The court found no current change of fact or law requiring such reconsideration existed. (Id.) Also, the claims set forth in this petition revealed an improper piecemeal attack on his criminal conviction. (Id.) The court further explained when petitioners make "improper piecemeal attack[s] on [ ] conviction[s]" via the filing of "numerous habeas corpus petitions, the reviewing court may summarily deny the current petition in its entirety." (Id. at 3.)

5. Fifth Habeas Filing: Superior Court

On February 26, 2009, Owen filed his fifth habeas corpus petition with the superior court, case number EHC693. (Lodgment 27.) The court denied the petition on March 25, 2009 because part of Owen's petition revealed another request for reconsideration when no reconsideration was mandatory or appropriate, another claim he presented could not be reviewed by way of habeas corpus, and the valid claims he did bring proved unsupported by the record. (Lodgment 28 at 3-4.)

6. Sixth and Seventh Habeas Filings: Superior Court

Owen filed his sixth habeas corpus petition with the superior court, case number EHC699, on March 18, 2009. (Lodgment 29.) On April 7, 2009, Owen filed his seventh petition with the same court, case number EHC702. (Lodgment 30.) The court denied both petitions on May 26, 2009 because the petitions raised issues already reviewed or litigated on appeal, or considered and denied in previous habeas corpus petitions. (Lodgment 31.) Also, the court determined Owen could not create a prima facie case for his newly asserted claims. (Id.)

7. Eighth Habeas Filing: Superior Court

On June 18, 2009, Owen filed an eighth habeas corpus petition with the superior court, case number EHC712. (Lodgment 32.) The court summarily denied this petition because the claims were raised and denied in "previous petitions for a writ of habeas corpus filed by him." (Lodgment 33 at 3-4.)

8. Ninth Habeas Filing: Court of Appeal

On August 13, 2009, Owen filed his ninth habeas corpus petition with the court of appeal, case number D055716. (Lodgment 34.) The court denied the petition, concluding Owen did not establish a prima facie case for relief and several of his claims were raised and rejected in his first court of appeal petition filed October 15, 2008. (Lodgment 35.)

9. Tenth Habeas Filing: Superior Court

Owen filed his tenth petition for a writ of habeas corpus with the superior court on October 20, 2009, case number EHC724. (Lodgment 36.) The court summarily denied this petition because Owen presented his contentions in an inappropriate piecemeal fashion and because some of his claims could not be raised via a habeas corpus petition. (Lodgment 37.)

10. Eleventh Habeas Filing: Superior Court

On February 1, 2010, Owen filed his eleventh petition for a writ of habeas corpus with the superior court, case number EHC738. (Lodgment 38.) On April 9, 2010, the court denied the petition because Owen had raised these claims in previous petitions and some of the issues were strictly issues of appeal. (Lodgment 40.)

11. Twelfth Habeas Filing: Supreme Court of California

On March 16, 2010, Owen filed a petition in the Supreme Court of California, case number S181115 (Lodgment 39); the court denied the petition on May 12, 2010. (Lodgment 41.)

12. Federal Court (The Present Petition)

On August 3, 2010, Owen filed a federal petition for writ of habeas corpus with this Court.

III. SUMMARY OF CLAIMS

In his petition for writ of habeas corpus, Owen presents numerous grounds for relief ranging from prosecutorial misconduct [ECF No. 1 at 8] to constitutional violations of his due process rights. [Id. at 23.] However, only one of his claims pertains to an exception to the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") one year statute of limitations, 28 U.S.C. § 2244(d)(1), that governs the timeliness of his petition; he has been "denied access to courts and lawyers" and other legal services. [ECF No. 1 at 6.] This claim includes allegations of mail tampering by the prison which houses Owen, refusing him telephone access to his lawyer, and withholding writing instruments. [Id.] Owen claims these impediments made it impossible to timely file his paperwork. [Id.]

Respondent argues the one year statute of limitations mandated in 28 U.S.C. § 2244(d)(1) bars Owen's federal writ of habeas corpus. [ECF No. 30.] Respondent contends Owen's direct review terminated on May 13, 2008, triggering the 365 day statute of limitations. Therefore, Owen's federal habeas corpus petition, filed on March 16, 2010 (over 365 days from May 13, 2008), was untimely. [ECF No. 30-1 at 16.] According to Respondent, Owen statutorily tolled the statute of limitations three times. [Id. at 17-19.] Furthermore, Respondent contends equitable tolling does not apply because Owen's claims of "being held hostage" by the prison and "denied access to lawyer[s] and courts" lack merit. [Id. at 20-21.]

IV. THE ONE YEAR STATUTE OF LIMITATIONS

AEDPA sets forth a one year statute of limitations period for a federal petition for writ of habeas corpus by a state prisoner, pursuant to the following language presented in 28 U.S.C. § 2244(d):

(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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