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Hugo A. Gonzalez v. Susan L. Hubbard


March 15, 2012


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented under 28 U.S.C. § 636(c) to the jurisdiction of the undersigned magistrate judge. For reasons stated below, the court finds that this action should be dismissed, with prejudice, as time-barred.


Pro se petitioner is a prisoner in state custody pursuant to a conviction in California Superior Court, Los Angeles County, Case No. BA336027. On September 15, 2008, the jury in that case convicted Petitioner of six counts of second-degree robbery, and made true findings on various enhancement allegations. [See Lodg.*fn1 1, 2, 3.] On November 6, 2008, Petitioner was sentenced in accordance with California's "Three Strikes" law (Cal. Penal Code sections 667(b)-(i), 1170.12(a)-(d)) to a total prison term of twenty-seven years and four months. [Lodg. 4, 5.]

Petitioner appealed. On August 4, 2009, Petitioner's appointed appellate counsel submitted an opening brief pursuant to People v. Wende, 25 Cal. 3d 436, 441, 158 Cal. Rptr. 839 (1979), requesting that the appellate court independently review the record for errors. [Lodg. 6.] On August 13, 2009, in accordance with instructions of the court [Lodg. 7], Petitioner personally submitted a letter to the appellate court raising a discovery claim. [Lodg. 9.]

On December 7, 2009, the state appellate court affirmed the conviction and sentence in a reasoned, unpublished decision. [Lodg. 10.] It appears from the record before this court that Petitioner did not submit a petition for review to the state supreme court. [See Petition at 3; MTD, Memorandum of Points and Authorities at 1.]

On May 26, 2011, Petitioner submitted an entirely unexhausted federal petition for writ of habeas to this court. [See case no. CV 11-4563-DOC(CW), docket no. 1.] On June 16, 2011, while that matter was pending, Petitioner submitted a habeas petition for filing in the state supreme court. [Lodg. 11.] He then asked this court to stay the federal petition pending resolution of the state matter, stating that he had been unaware of the exhaustion requirement. [See case no. CV11- 4563-DOC(CW), docket no. 8, filed June 23, 2011.] On August 10, 2011, the stay request was denied, and the federal petition dismissed without prejudice in accordance with Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)("District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440 (2005). We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included."). [See id., docket nos. 9, 10.]

On October 26, 2011, Petitioner's state habeas petition was summarily denied. [Lodg. 12.]

On November 4, 2011, Petitioner submitted this petition. [Docket no. 1.] On December 12, 2011, Respondent filed a motion to dismiss the petition as time-barred. [Docket no. 6.] In a minute order dated December 13, 2011, the court advised petitioner with respect to the statute of limitations and his options. [Docket no. 10.] After one extension of time was granted, Petitioner's response was due on or before February 13, 2012 [see docket no. 12]; no reply has been filed. The motion to dismiss is therefore ready for decision.


An application for federal habeas corpus relief on behalf of a person in custody pursuant to a state court judgment, filed after enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") on April 24, 1996, is subject to the one-year statute of limitations codified at 28 U.S.C. § 2244(d). See Duncan v. Walker, 533 U.S. 167, 176, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001); Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Wixom v. Washington, 264 F.3d 894, 895 (9th Cir. 2001).

The limitation period is calculated in light of Fed. R. Civ. P. 6(a).*fn2 See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), a document may be construed as filed on the date it was submitted to prison authorities for mailing. To benefit from this rule, a petitioner must be a prisoner, acting without assistance of counsel, and the document must have been delivered to prison authorities within the limitation period. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).*fn3

For petitioners, like the Petitioner here, whose convictions became final after AEDPA's enactment, the one-year limitation period begins running from the latest of four alternative dates:

(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*fn4 ;

(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.*fn5

28 U.S.C. § 2244(d)(1).

Under 28 U.S.C. § 2244(d)(1)(A), a judgment may become final in one of several ways. If the highest state court denied relief on direct review, and the petitioner filed a petition for writ of certiorari in the United States Supreme Court, the judgment becomes final when the Supreme Court issues a decision or ruling. Wixom v. Washington, 264 F.3d at 897. If the highest state court denied relief on direct review, and the petitioner did not file a certiorari petition, the judgment becomes final when the deadline for filing such a petition expires, i.e., ninety days after the state court's decision. Id. If the petitioner did not seek direct review from the highest state court, the judgment becomes final when the time for seeking such review expires, as determined by state law. Id. at 898.

Under 28 U.S.C. § 2244(d)(2), the running of the one-year limitation period may be tolled while a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." A petitioner is not entitled to such "statutory tolling" based on a prior habeas corpus petition or other application for collateral relief in federal court. See Duncan v. Walker, 533 U.S. at 181-82. Tolling does not apply to a period between the end of direct review and the beginning of state collateral review, see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), nor does it apply between the end of state collateral proceedings and the filing of a federal habeas proceeding, see Roy v. Lambert, 465 F.3d 964, 968 (9th Cir. 2006)(superceding 455 F.3d 945). Furthermore, the tolling provision does not restart the running of the limitations period if it expired before state collateral review began. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).

Statutory tolling covers the time during which a properly filed state collateral proceeding was "pending" before the state court.*fn6 A state collateral proceeding is "pending" either while it is actually before one state court or during a "gap" between one state court's decision and the proper filing of a timely application in a higher state court. Evans v. Chavis, 546 U.S. 189, 126 S. Ct. 846, 849, 163 L. Ed. 2d 684 (2006); Carey v. Saffold, 536 U.S. 214, 219-21, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002). In California habeas proceedings, after a lower court denies a habeas petition, the next proper step is filing a new habeas petition (rather than an appeal) in a higher court, and the new petition is timely if filed within a "reasonable time." Evans, 126 S. Ct. at 849. If the state court has not explicitly indicated that a later petition was or was not timely, the reviewing federal court must decide whether the gap between the two state petitions was reasonable. Id. at 850-54. In this context, the Evans Court found "an unjustified or unexplained" filing delay of six months to be unreasonable. Id. at 854.

The limitations period may also be subject to equitable tolling, but only if the petitioner acted diligently and extraordinary circumstances beyond the petitioner's control made timely filing impossible. See Pace v. DiGuglielmo, 544 U.S. 408 at 418; Roy v. Lambert, 465 F.3d at 969; Fail v. Hubbard, 315 F.3d 1059, 1061-62 (9th Cir. 2002). "[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule," and a petitioner "bears the burden of showing that this extraordinary exclusion should apply to him." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)(quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).


In Petitioner's case, the record does not support a starting date for the statutory period based on 28 U.S.C. § 2244(d)(1)(B)-(D).*fn7 For purposes of 28 U.S.C. § 2244(d)(1)(A), Petitioner's conviction became final on January 16, 2010, when he failed to file a petition for review with the state supreme court within forty days of the California Court of Appeal's denial of his direct appeal. See Cal. R. Ct. 8.500(e)(1), 8.366(b). Therefore, unless tolling applied, the statutory period expired one year later, on January 17, 2011, well before November 4, 2011, the earliest date on which the present petition may be construed as filed.*fn8

The record does not suggest any period of statutory tolling under 28 U.S.C. § 2244(d)(2). Petitioner's state habeas petition was not filed until June 16, 2011, long after the one-year limitation period expired, and, consequently, it did not toll or reinitiate the limitations period. Nor does the record suggest that any extraordinary circumstances beyond Petitioner's control would justify equitable tolling. See, e.g., Raspberry v. Garcia, 448 F.3d at 1154 (a petitioner's claims of ignorance of the law, lack of education, or illiteracy are not grounds for equitable tolling).

The instant petition is therefore untimely and should be dismissed with prejudice.


Accordingly, it is ORDERED that:

1. Respondent's motion to dismiss (docket no. 6, filed December 12, 2011) is GRANTED.

2. The petition is DISMISSED, with prejudice, as time-barred.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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