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Michael A. Hoover v. William Knipp

December 5, 2011

MICHAEL A. HOOVER, PETITIONER,
v.
WILLIAM KNIPP, ET AL.,*FN1 RESPONDENTS.



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

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss, filed on May 13, 2011, to which petitioner filed his response on June 9, 2011, after which respondent, on June 23, 2011, filed a reply. Petitioner was convicted in 1998 in Butte County Superior Court of three counts of committing a lewd act upon a child, attempted lewd act upon a child, failure to register, two counts of forcible lewd act upon a child, and aggravated sexual assault of a child. Petition, p. 1; Motion to Dismiss (MTD), pp. 1-2, respondent's Lodged Document (hereafter, resp. Lod. Doc.) 1 (Abstract of Judgment). Petitioner received an indeterminate sentence of eighty-nine years and four months to life. Petition, p. 1; MTD, pp. 1-2, resp. Lod. Doc. 1. Petitioner raises the following grounds, conflating two claims into the first one: 1) trial court error in failing to provide lesser included offense instruction of nonforcible lewd act in count 1, forcible lewd conduct, as well as ineffective assistance of counsel by request that such instruction not be given; 2) insufficient evidence of force or duress to support jury verdict on count 1; 3) ineffective assistance of counsel for defense counsel's failure to object to introduction of testimony of Brianna and for failing to move for a mistrial after the court determined she was not qualified to testify. See Petition.

Motion to Dismiss

Respondent moves for dismissal with prejudice on the ground that the petition is untimely. See Motion to Dismiss (MTD). The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.

Following his sentencing on August 11, 1998, petitioner appealed. The judgment was affirmed on May 22, 2000, by the California Third District Court of Appeal. MTD., p. 2, resp. Lod. Doc. 2 (Third DCA unpublished opinion). The California Supreme Court denied petitioner's petition for review on August 9, 2000. MTD, p. 2, resp. Lod. Doc. 3 (Petition for Review) & Lod. Doc. 4 (Cal. Supreme Court denial of petition for review). Respondent is correct that petitioner had ninety (90) days following the state Supreme Court's August 9, 2000 denial of direct review before the state court conviction became final, which is the period of time petitioner would have had to file a petition for writ of certiorari with the United States Supreme Court. MTD, p. 2, citing Supreme Court Rule 13; Bowen v. Roe, 188 F.3d 1157[, 1159] (9th Cir. 1999). Thus, petitioner's conviction became final on November 7, 2000. MTD, p. 2. In his one-page opposition, petitioner does not dispute respondent's contention that petitioner filed no state post-conviction collateral challenge; nor does petitioner challenge the date set forth by respondent as to when his state court conviction became final. MTD, p. 2; see Opposition (Opp.); Reply, pp. 1-2.

The one-year statute of limitations under AEDPA began to run the day following, on November 8, 2000. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Therefore, under 28 U.S.C. § 2244(d), petitioner had until November 7, 2001, to file his petition in federal court. However, even liberally applying the mailbox rule,*fn2 the instant petition was not filed in this court until March 8, 2011, some 3,408 days or more than nine years after the expiration of the one-year statutory period. Therefore, unless petitioner's is entitled to equitable tolling, this petition is time-barred.

Equitable Tolling

The Supreme Court has fairly recently held "like all 11 Courts of Appeals that have considered the question...that § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2560 (2010). In Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (the Ninth Circuit case cited in Holland, supra), overruled on other grounds, Calderon v. U. S. District Court (Kelly), 163 F.3d 530 (9th Cir. 1998), itself abrogated by Woodford v. Garceau, 538 U.S.202, 123 S. Ct. 1398 (2003), the Ninth Circuit found that the statute of limitations could be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file the petition on time. "In addition, '[w]hen external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling may be appropriate.'" Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002), quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be available in most cases because tolling should only be granted if extraordinary circumstances beyond a prisoner's control make it impossible for him to file a petition on time. Beeler, 128 F.3d at 1288-89. As held in Beeler, "[w]e have no doubt that district judges will take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." 128 F.3d at 1289. "Mere excusable neglect" is insufficient as an extraordinary circumstance. Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 619 (3rd Cir. 1998). Moreover, the Ninth Circuit has ...


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