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Aaron P. Stone v. M. Martel

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


November 17, 2011

AARON P. STONE, PETITIONER,
v.
M. MARTEL, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS and RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, arguing that it is untimely, or in the alternative, that the claims raised are not exhausted. Petitioner has opposed the motion, and has additionally filed several other motions. For the reasons outlined below, the undersigned recommends that the motion to dismiss be granted, and that the remaining motions be denied as moot.

BACKGROUND

On November 14, 2006, petitioner was convicted by jury of six counts of violation of California Penal Code § 288(a), Lewd Acts with a Child Under 14, and was subsequently sentenced to a term of eighteen years on the convictions. The sentence consisted of: (1) an eight year sentence for one of the counts, and (2) five consecutive, middle term sentences of 2 years each on the remaining five counts. On July 31, 2008, the Court of Appeals, Third Appellate District, overturned the conviction in part, finding insufficient evidence to support the convictions, and modified the sentence to eliminate the corresponding consecutive two year term on the overturned court. Lodged Doc. No. 1, at p. 12 ("The sentence is modified to eliminate the consecutive term imposed on count six. The trial court is directed to amend the abstract of judgment to reflect the foregoing....As so modified, the judgment is affirmed.") In accordance with the Court of Appeal's order, on November 28, 2008, the trial court entered a new sentence for 16 years. See Doc. No. 1, p. 80.*fn1

On September 8, 2008, petitioner filed a petition for review in the California Supreme Court. His petition raised the following questions: (1) whether petitioner's Fourteenth Amendment due process rights were violated by the trial court's admission of evidence of defendant's prior bad acts; (2) whether the trial court's imposition of an upper-term sentence violated petitioner's Fifth, Sixth, and Fourteenth Amendment rights, since the trial court, rather than a jury, had made the findings underlying the factors relied upon by the trial court in imposing the upper-term sentence; and (3) whether the trial court erred in sentencing petitioner to consecutive terms of imprisonment. See Lodged Doc. No. 2. On October 16, 2008, the Supreme Court denied review in a summary order which did not cite to any authority. See Lodged Doc. No. 3. A review of the record reflects that petitioner has not filed any other challenges in the state Supreme Court. See Doc. No. 36, p. 6.

On January 14, 2009, the time for petitioner to file a petition for writ of certoirari in the United States Supreme Court expired. See Sup. Ct. R. 13. A review of the record reflects that petitioner did not file any petitions with the United States Supreme Court.

In the meantime, petitioner sought collateral relief in the Superior Court and the Court of Appeals. The record before this court reflects that, between 2007 and 2010, petitioner filed more than twenty petitions or motions attacking the criminal judgment.

A brief review of these pleadings is necessary to determine the respondent's motion:

(1) On January 17, 2007,*fn2 petitioner filed a petition for writ of habeas corpus in the Court of Appeal for the State of California, Third Appellate District (docket no. C054619). See Lodged Doc. No. 52. Petitioner alleged, among other things, that the evidence was insufficient to support his conviction, and that his trial counsel was ineffective. Id. The Court of Appeal denied the petition on January 25, 2007, citing In re Hillery, 202 Cal. App. 2d 293, 294 (1962) (petitioners should first seek habeas relief in superior courts) and In re Harris, 5 Cal. 4th 813, 826-27 (1993) (habeas may not be employed as a substitute for an appeal). See Lodged Doc. No. 53. (2) On May 3, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F04643). See Lodged Doc. No. 4. Petitioner alleged, among other things, that the evidence adduced at trial was insufficient to support his convictions. Petitioner also noted that he had a pending appeal in the Court of Appeal. On May 30, 2007, the Superior Court dismissed the petition, noting that it was without authority to proceed on the writ petition for any error which was or might have been presented to the appellate court. See Lodged Doc. No. 5.

(3) On June 13, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F05632). See Lodged Doc. No. 6. Petitioner alleged, among other things, that the evidence at trial was insufficient to support his convictions and that the victim's testimony was not credible. On July 30, 2007, the Superior Court, noting that petitioner's appeal was still pending, denied the petition "for the same reason his earlier petition was denied - while the appeal is pending, this court lacks authority to entertain any claim which was, or should have been, presented to the Court of Appeal." See Lodged Doc. No. 7.

(4) On June 18, 2007, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 07F06036). See Lodged Doc. No. 8. Petitioner alleged, among other things, that his counsel was incompetent and that his pre-trial bail amount was too high. On August 8, 2007, the Superior Court denied the petition, finding that petitioner failed to establish a prima facie showing on either the counsel or bail claims. See Lodged Doc. No. 9. (A third claim was dismissed because the direct appeal was still pending.)

(5) On July 31, 2008, the Court of Appeal affirmed the judgment against petitioner, except as to Count 6, which was reversed for insufficient evidence. On or about November 24, 2008, the trial court entered its amended sentence.

(6) On September 8, 2008, petitioner filed a petition for review in the California Supreme Court. (Docket Number S166573), (see Lodged Doc. No. 2) which was denied on October 16, 2008. See Lodged Doc. No. 3.

(7) On December 17, 2008, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 08F10306). See Lodged Doc. No. 10. Among other things, petitioner alleged that the trial court abused its discretion in not sentencing petitioner to probation, and in allowing testimony regarding incidents of domestic violence between petitioner and the victim's mother. On February 5, 2009, the Superior Court found that this petition was successive, because the third petition challenging the judgment, Case No. 07F06036, was denied on its merits. See Lodged Doc. No. 11. The Superior Court found that each of petitioner's claims were procedurally barred, and, in the alternative, that petitioner failed to make a prima facie showing for relief.

(8) On March 12, 2009, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District (docket no. C061287). See Lodged Doc. No. 54. Petitioner argued that the Superior Court erred in finding his most recent habeas petition successive because the Superior Court had lacked jurisdiction to review his prior habeas petitions, filed while his direct appeal was still pending. He additionally argued, among other things, that his sentence was unconstitutional because the trial court failed to sentence him to probation when he was eligible for it. On April 2, 2009, the Court of Appeal denied the petition as successive, citing People v. Kim, 45 Cal. 4th 1078, 1101 (2009) (piecemeal presentation of known claims is prohibited) and In re Clark, 5 Cal. 4th 750, 777 (1993) (same). See Lodged Doc. No. 55.

(9) On April 13, 2009, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 09F03042). See Lodged Doc. No. 12. Petitioner alleged that the Superior Court's three prior decisions, denying his prior habeas petitions on the ground that his appeal was pending, were void judgments, and asked that the Superior Court "clarify this matter regarding any procedural bar...." Petitioner additionally argued that the trial court abused its discretion in not sentencing petitioner to probation, and that his trial counsel was ineffective. On May 28, 2009, the Superior Court denied the petition, finding that it was his fifth challenging the criminal judgment and that it was successive. See Lodged Doc. No. 13. The Superior Court additionally found that there was no merit in petitioner's sentencing or counsel claims.

(10) On June 12, 2009, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District (docket no. C062079). See Lodged Doc. No. 56. Petitioner alleged that the trial court "acted in excess of its jurisdiction," and asks to be re-sentenced. He claims that he only became aware of the grounds for re-sentencing after the trial court denied his first three petitions. On June 18, 2009, the Court of Appeal denied the petition as successive, citing to In re Clark, supra. See Lodged Doc. No. 57.

(11) On July 15, 2009 and July 21, 2009, petitioner filed motions for modification of his sentence in his original criminal case. See Lodged Doc. Nos. 14 and 15. Each motion was a one-page form. Petitioner did not give any grounds in support of the application. The motions were denied in minute orders by Judge Savage on July 21, 2009 and on August 4, 2009. See Lodged Doc. Nos. 16 and 17.

(12) On August 28, 2009, petitioner filed a petition for writ of mandate or prohibition with the Court of Appeal, Third Appellate District (docket no. C062771), seeking to overturn his sentence because, he argued, the trial court unconstitutionally enhanced his sentence in violation of Cunningham v. California, 127 S. Ct. 856, 549 U.S. 270 (2007). See Lodged Doc. No. 58. He again argues that the trial court abused its discretion in not sentencing him to probation. On September 3, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 59.

(13) On September 24, 2009, petitioner filed a petition for writ of mandate or prohibition with the Court of Appeal, Third Appellate District (docket no. C063009), raising again the Cunningham sentencing argument he had raised in his August 28, 2009 petition. See Lodged Doc. No. 60. On October 8, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 61.

(14) On October 13, 2009, petitioner filed a petition for writ of mandamus in the Court of Appeal, Third Appellate District (docket no. C063172), alleging errors in his original sentence, and in his amended sentence. See Lodged Doc. No. 62. In particular, petitioner claimed that he was not present at his re-sentencing hearing, and that his sentence violated Cunningham, supra. On November 12, 2009, the Court of Appeal denied the petition. See Lodged Doc. No. 63.

(15) On December 22, 2009, petitioner filed a petition for writ of mandate or prohibition with the Sacramento County Superior Court (docket number 34-2009-80000409), alleging that his original sentence and amended sentence were illegal because, among other things, the record does not support an upper-term sentence. Petitioner also argues that his due process rights were violated because he was not present at the re-sentencing hearing. See Lodged Doc. No. 18. The Superior Court construed the mandamus as a habeas petition (see Lodged Doc. No. 19), and, on March 2, 2010, denied it (see Lodged Doc. No. 20), finding it successive and untimely, and additionally finding no merit to the claims. In particular, the Superior Court noted that there was no Cunningham error, because petitioner's prior convictions were sufficient "aggravating factors" in support of an upper-term sentence.

(16) On March 15, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court (docket no. 10F01858). See Lodged Doc. No. 21. Petitioner had initiated an administrative proceeding at his prison, claiming that his sentence was not valid and asking the prison to recall the sentence. The prison denied his claims, explaining that the records reflected that he was sentenced legally. On April 19, 2010, the Superior Court denied petitioner's petition, which it described as an effort by petitioner to obtain "a court order, on habeas corpus, that the Department file with the court a recommendation for recall of the sentence......because [petitioner] is not sentenced by the court or his sentence is unlawful. This claim is utterly meritless." See Lodged Doc. No. 22.

(17) On April 6, 2010, petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court (docket no. 10-HC-1259), alleging that the trial court abused its discretion in not sentencing him to probation, and also violated his due process rights in not having him present during re-sentencing. See Lodged Doc. No. 23. On April 23, 2010, Amador County Superior Court transferred the petition to Sacramento County (see Lodged Doc. Nos. 24, 25, 26).

(18) On April 12, 2010, petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court (docket no. 10-HC-1262), alleging, among other things, that his sentence is illegal under Cunningham and that he should have been sentenced to probation. See Lodged Doc. No. 27. On April 26, 2010, Amador County transferred the petition to Sacramento County. See Lodged Doc. Nos. 28, 29, 30, 31.

(19) On May 17, 2010, petitioner filed a letter addressed to Judge Kenny of the Sacramento County Superior Court, which appears to seek reconsideration of the court's March 2, 2010 order. See Lodged Doc. No. 34. Petitioner wrote that he addressed his motion to Judge Kenny, since Judge Kenny had construed petitioner's December 22, 2009 mandamus petition as one for a writ of habeas corpus.

(20) On May 17, 2010, the Sacramento County Superior Court issued an order denying the May 17, 2010 motion for reconsideration, as well as the two petitions transferred from Amador County. The trial court noted:

As petitioner was warned in the court's denial order [dated March 2, 2010], petitioner is now engaging in a gross abuse of the writ process that is now progressing to a new stage in which petitioner is seeking relief from other trial courts from his judgment from this court. That petitioner cannot do. As petitioner is raising no new issue and has been repeatedly turned down in his requests for probation and modification of sentence, his is grossly abusing the writ process.

Lodged Doc. No. 35.

(21) On June 8, 2010, petitioner filed a petition for writ of habeas corpus with the Amador County Superior Court (docket no. 10-HC-1293), alleging that the warden of Mule Creek State Prison had unlawfully accepted and surrendered petitioner into custody because petitioner's commitment order is not authorized by any provisions of law. See Lodged Doc. No. 37. Petitioner additionally moved the Amador County Court that it retain jurisdiction over the petition since the Amador court had previously transferred prior petitions to Sacramento County, but that Sacramento had "defaulted." On June 24, 2010, Amador County Judge Harlan denied the petition for failure to establish a prima facie case for relief, citing In re Duvall, 9 Cal. 4th 464, 474-75 (1995). See Lodged Doc. No. 38.

(22) On June 28, 2010, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court (docket no. 10F04420), alleging that Warden Michael Martel had unlawfully accepted and surrendered petitioner into custody. See Lodged Doc. No. 41. On July 19, 2010, Judge Roman of the Sacramento County Superior Court denied the petition, finding that the petition was untimely and successive. The Sacramento court noted that this was petitioner's ninth habeas petition challenging his criminal judgment, adding:

[g]enerally, a defendant convicted of a felony has but one opportunity to bring a habeas corpus petition before a California court. Once that opportunity has been exhausted, future claims on habeas will not be cognizable at all, unless the claims meet the Robbins/Clark bar. In the absence of an extraordinary reason for not bringing a successive claim in an earlier petition, it is a gross abuse of the writ process to file endless, unsubstantiated, frivolous, piecemeal new petitions, such as this one, with this court that are barred under Robbins/Clark.

Lodged Doc. No. 42.

(23) On July 12, 2010, petitioner filed a petition for writ of mandate or prohibition in Amador County Superior Court (docket no. 10cv6782), alleging that Sacramento County Judge Kenny had previously granted his prior petition for writ of mandamus. See Lodged Doc. No. 43. He additionally argued that Amador County's prior transfer orders were actually orders granting habeas relief. Petitioner additionally argued that his sentence was illegal. On August 5, 2010, Amador County deemed the petition to be one for habeas relief (see Lodged Doc. No. 44), and, on August 24, 2010, denied it for failure to state a prima facie case for relief. See Lodged Doc. No. 50.

(24) On July 14, 2010, petitioner filed a writ of mandate or prohibition in Sacramento County Superior Court (docket no. 10F05222). See Lodged Doc. No. 45. The petition is identical to the one filed in Amador County on July 12, 2010. On September 13, 2010, the Sacramento County Superior Court denied the petition. See Lodged Doc. No. 46.

(25) On July 21, 2010, petitioner filed a petition for writ of mandate or prohibition in the Court of Appeal, Third Appellate District (docket no. C065586), also identical to the one filed on July 12, 2010 in Amador County. See Lodged Doc. No. 64. On July 29, 2010, the Court of Appeal denied the petition. See Lodged Doc. No. 65.

(26) On December 27, 2010, petitioner filed in this court a Complaint under the Civil Rights Act, 42 U.S.C. § 1983, against Allison Dunham, from the Sacramento District Attorney's Office, and M. Martel, Warden of Mule Creek State Prison. See Doc. No. 1. On January 10, 2011, this court ordered that the complaint be construed as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See Doc. No. 6. On May 11, 2011, respondents moved to dismiss the petition. See Doc. No. 36. It is this motion which is currently before the court.

THE CURRENT PETITION

Petitioner now proceeds on the petition described supra. See Doc. No. 1.*fn3 For relief, he appears to seek dismissal of his criminal conviction. See Doc. 1, page 3. As grounds, petitioner appears to allege that: (1) his 2008 re-sentencing hearing violated his due process rights, because he was not present at the hearing; (2) the sentencing judge acted in excess of his jurisdiction by imposing an illegal sentence; (3) the sentencing judge faxed a false commitment document to the California Department of Corrections, which was false because it read that petitioner was present at the re-sentencing hearing when he was not; (4) the California Department of Corrections accepted the false documentation, and then aided and abetted the sentencing judge's deliberate falsification by altering their file information to give the "appearance" that petitioner was at the re-sentencing hearing; (5) Sacramento County Superior Court Judges Roman, Connelly, and Earl illegally barred petitioner from remedying these errors by applying the wrong legal principals; and (6) the district attorney has failed to respond to the "60 Day Action Order" issued by Sacramento County Judge Connelly on January 28, 2010. See id.

Petitioner claims that Judge Connelly "issued my writ of mandate as a habeas corpus granting review of and 60 day action order to District Attorney Allison Dunham...." and that respondent has now exceeded the 60 days requirement, resulting in a failure to prosecute. See Doc. No. 1 at 3, 6-7, 9-10, 22. Petitioner appears to allege that Sacramento County Judge Connelly's January 28, 2010 order, which construed the petition for writ of mandate as a petition for writ of habeas corpus, created an obligation for the District Attorney to correct what petitioner considers to be an error in his sentence, and that the District Attorney's "failure to prosecute in a timely manner" violates his due process and speedy trial rights, entitling him to dismissal of the criminal case. See Doc. No. 1 at 22. In support, petitioner argues that the District Attorney bears the complete burden to correct errors of law, or to notify the courts of errors. See id. Petitioner appears to allege that, once the trial court served "the prosecuting attorney (D.A.) in any case for preliminary examination for case review, under Penal Code 1382 the D.A. has 60 days to bring defendant to resentencing." See id.

Petitioner also alleges that he received ineffective assistance of trial and appellate counsel. In support, petitioner argues that the "sentence itself is more than enough evidence to support the fact that [trial counsel] intentionally denied petitioner a fundamentally fair representation," that counsel supported the trial court's unethical and illegal operation in excess of its jurisdiction, and that counsel never objected to the disproportionate sentence. See Doc. No. 1 at 16.

Petitioner argues that appellate counsel was also ineffective, that she also supported the trial court's illegal procedures, and that she supported the violation of petitioner's right to be present at re-sentencing. Id.

THE MOTION TO DISMISS

Respondent now moves to dismiss this habeas petition, arguing that it is untimely filed or, in the alternative, that the claims raised by petitioner are not exhausted. Petitioner opposes the motion, restating his arguments that the criminal judgment is void, that his constitutional rights were violated when he was not allowed to be present at re-sentencing, and that, pursuant to California Department of Corrections policy, he is entitled to release because the prosecutor failed to prosecute Judge Connelly's "60 day action order" in a timely manner.

Timeliness

Unlike the usual case involving the AEDPA limitations statute in which the petitioner has slept on his issues, petitioner herein was abusively diligent, both before and after the finality of his conviction for AEDPA purposes. However, this pseudo-diligence does not save this petition from being found untimely.

Respondent argues that petitioner's habeas petition was due on January 14, 2010, and is late, because it was not filed until December 27, 2010. Respondent acknowledges that petitioner is entitled to toll any time when he had a "properly filed" petition pending in the state court. Giving petitioner credit for time when arguably "properly filed" petitions were pending, respondent argues that petitioner's federal petition was due no later than March 4, 2010. Respondent argues that any state petitions filed after that date cannot toll the deadline.

In opposition, petitioner appears to argue that, under relevant California law for non-capital cases, there is no standard by which the court can determine if there has been a substantial delay, and that denial of his numerous writs in the state court based on this "wrong legal principle was inappropriate and violated petitioner's 14th amend. rights." See Doc. No. 38, p. 6.

Exhaustion

Respondent alternatively argues that petitioner has failed to exhaust his current arguments in the state court, and that the arguments raised by petitioner appear to be based on events that occurred after petitioner's petition for review was denied at the state Supreme Court.

In his opposition, petitioner does not address the exhaustion arguments raised by respondent.

RELEVANT AUTHORITY

Timeliness

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A), a federal petition for writ of habeas corpus ordinarily must be filed within one year after the state court judgment becomes final by the conclusion of direct review of the expiration of the time to seek direct review. E.g., Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). The time during which a properly filed application for state post-conviction or collateral review (including California habeas proceedings) is pending does not count toward this one-year period. Id., citing 28 U.S.C. § 2244(d)(2).

However, a petition filed before completion of direct review, or one filed after the expiration of the statute of limitations, does not operate to effect the petitioner's available time at all. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2005) ("pre-finality" petitions); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949, 123 S. Ct. 1627 (2003) (applications for state post-conviction relief do not toll statute of limitations if filed after statute of limitations has expired).

The relevant considerations for this petition are (1) whether petitioner's many state court collateral petitions and motions were "properly filed," and, if so, (2) during what periods were they "pending"?

"Properly Filed"

An application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364 (2000). This question is distinct from whether the claims considered in the application are meritorious and free of procedural bar. Id. (identifying distinction between condition to filing and condition to obtaining relief).

Untimely petitions are not properly filed. Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S. Ct. 1807, 1814 (2005) (where state court rejects petition as untimely, it was not "properly filed" and petitioner is not entitled to statutory tolling), Carey v. Saffold, 536 U.S. 214, 225-26, 122 S. Ct. 2134, 2141 (2002) (if state court rules that petition is untimely, that is "the end of the matter," regardless of whether state court also addressed merits of the claims, or whether timeliness ruling was "entangled" with the merits). Under California state law, a successive petition presenting additional claims that could have been presented in an earlier collateral petition is, of necessity, a "delayed petition." See In re Clark, 5 Cal. 4th at 770.*fn4

At least one court in this district has found that the Clark bar extends to successive petitions where petitioner does not raise any new claims:

The California Supreme Court's reasons for finding a successive petition raising new claims to be untimely is equally applicable to a successive petition raising identical claims. There is no indication in Clark that the California Supreme Court meant to find that successive duplicative petition was timely, whereas a successive petition raising new claims was not.

See Chance v. Martell, 2011 U.S. Dist. LEXIS 103235 *13-14 (Sept. 13, 2011) (Newman, M.J.) (discussing whether Clark barred tolling for interval between first and second, successive petition).

"Pending"

Collateral review is considered to be "pending" during the interim between a writ being denied at one court level and a new petition being filed at the next highest court level as long as the petition at the next level is filed within a reasonable period of time. Carey v. Scaffold, 536 U.S. at 222-25, 122 S. Ct. at 2139-2141.

If the time to file a federal petition has not already expired when a second round of properly filed California habeas petitions begins, the second round of petitions will also toll the § 2244(d)(1) period. See Porter v. Ollison, 620 F.3d at 952 ("For tolling to be applied based on a second round [of petitions filed in the state court], the petition cannot be untimely or an improper successive petition."). However, the interval between the two rounds is not tolled. Id. Additionally, according to the Porter decision, a second round will not toll the AEDPA deadline if the second petition is "untimely or an improper successive petition." See id., citing Townsend v. Knowles, 562 F.3d 1200, 1205 (9th Cir.), cert. denied, 130 S. Ct 193 (2009) (untimely state court petition not properly filed).

The Ninth Circuit has also answered whether a petitioner may be entitled to interval tolling between two Superior Court petitions, finding that where a petitioner elects to begin a second round of petitions in the Superior Court before completing a full round of review through the highest available state court, petitioner may be entitled to interval tolling between the first and second Superior Court petitions if the second petition is timely, and "the successive petition was attempting to correct deficiencies of a prior petition," because the petitioner "is still making proper use of state court procedures and habeas review is still pending." See Banjo v. Ayers, 614 F.3d 964, 968-69 (9th Cir. 2010).

ANALYSIS

Under the chronology outlined above, petitioner's petition for review was denied in the California Supreme Court on October 16, 2008, and the time to seek direct review ended on January 14, 2009, when his 90-day period to file a petition for writ of certiorari with the United States Supreme Court ended. Petitioner thereafter had one year in which to file his federal petition, beginning January 15, 2009, and ending one year later, on January 14, 2010.

Petitioner, however, did not file his federal petition until December 27, 2010, some 348 days afterwards, and so it is untimely unless he is entitled to toll the deadline.

The undersigned finds that petition is not entitled to tolling under 28 U.S.C. § 2244(d)(2):

-- The petitions filed January 17, 2007; May 3, 2007; June 13, 2007; and June 18, 2007, should have no effect on the petitioner's statute of limitations, as they were filed prior to completion of direct review. See Waldrip v. Hall, 548 F.3d at 735.

-- The petitions filed December 17, 2008, March 12, 2009, April 13, 2009, June 12, 2009, and December 22, 2009, were denied as successive, and were therefore untimely under California law. See In re Clark, 5 Cal. 4th at 770. As untimely petitions, they were not properly filed. See Pace v. DiGuglielmo, 544 U.S. at 417.

-- The motions for modification of sentence, filed July 15, 2009 and July 21, 2009, were filed with the Superior Court nine (9) months after the state Supreme Court denied review of petitioner's judgment and sentence, and more than eight (8) months after the Superior Court entered the amended judgment and sentence. Pursuant to California Penal Code section 1170, the superior court may, within 120 days of the date of commitment, recall a sentence and commitment previously ordered and re-sentence the prisoner. After that time period, the sentencing court does not have jurisdiction to vacate or to modify the sentence. See Dix v. Superior Court, 53 Cal. 3d. 442, 464 (1991); People v. Lockridge, 12 Cal. App. 4th 1752, 1757 (1993). The motions are accordingly not "properly filed," because the court in which petitioner filed them lacked jurisdiction to provide the relief requested. See Blair v. Crawford, 275 F.3d 1156, 1158 (9th Cir. 2002), citing Artuz v. Bennett, 531 U.S. at 9, 121 S. Ct. at 364 ("If, for example, an application is erroneously accepted by the clerk of a court lacking jurisdiction....it will be pending, but not properly filed.")(emphasis in original).

-- The mandamus petitions filed August 28, 2009, September 24, 2009, and October 13, 2009 were untimely, since they were filed at least ten months after entry of the judgment. See People v. Superior Court (Brent), 2 Cal. App. 4th 675, 682 (1992) ("Where there is otherwise no statutory authority or time limit in filing a writ, it must usually be filed within 60 days").

-- The petitions and motions filed March 15, 2010; April 6, 2010; April 12, 2010; May 17, 2010; June 8, 2010; June 28, 2010; July 12, 2010; July 14, 2010; and July 21, 2010, were filed after January 15, 2010, when the statute of limitations expired. They do not affect tolling. See Jiminez v. Rice, 276 F.3d at 482.

Because the petition was not timely filed, the undersigned does not reach respondent's alternative argument that petitioner failed to exhaust his arguments in state court.

The undersigned additionally recommends that the remaining motions be denied as moot.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. The respondent's motion to dismiss (Doc. No. 36) the petition be GRANTED.

2. The Complaint filed May 5, 2011 (Doc. No. 39) be construed as a motion to dismiss the underlying criminal conviction, and, so construed, be DENIED.

3. All other motions (Doc Nos. 46, 48, 56 and 58) be DENIED as moot. 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 fourteen 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 fourteen 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).

If petitioner files objections, he shall also address if a certificate of appealability should issue and, if so, as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).


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