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Phillip L. Brown v. Mike Mcdonald

May 2, 2012

PHILLIP L. BROWN, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss this action on the grounds that the federal habeas petition was filed beyond the governing one-year statute of limitations. Petitioner has filed an opposition to the motion, respondent has filed a reply, and petitioner has filed an unauthorized response to the reply.*fn1

BACKGROUND

Petitioner challenges a 2007 judgment of conviction entered against him in the Sacramento County Superior Court on two counts of rape by means of force (Cal. Penal Code § 261(A)(2)), assault with a deadly weapon (Cal. Penal Code § 245(A)(1)), two counts of failure to register as a sex offender (Cal. Penal Code § 290(G)(2)), assault with intent to rape (Cal. Penal Code § 220), false imprisonment (Cal. Penal Code § 236), and vandalism (Cal. Penal Code § 594(A). (Resp't's Lod. Doc. No. 1.) The jury also found the various sentencing enhancement allegations to be true. (Id.) Petitioner was sentenced to a determinate state prison term of fifty-five years and four months. (Id.)

Petitioner appealed from his judgment of conviction to the California Court of Appeal for the Third Appellate District. On June 26, 2008, the state appellate court modified the judgment by striking one of the three prior prison term enhancements which reduced petitioner's sentence to fifty-four years and four months in state prison, and ordered the Sacramento County Superior Court to amend the abstract of judgment accordingly. (Resp't's Lod. Doc. No. 2.) In all other respect the judgment of conviction was affirmed. Petitioner then filed a petition for review in the California Supreme Court, which was denied on September 10, 2008. (Resp't's Lod. Doc. 3-4.)

Petitioner filed two post-conviction collateral challenges in the California courts.*fn2

First, on March 3, 2008, petitioner filed a petition for a writ of habeas corpus in the Sacramento County Superior Court. (Resp't's Lod. Doc. 5.) On April 18, 2008, that petition was dismissed upon petitioner's request. (Resp't's Lod. Doc. 6.) Next, on December 26, 2010, petitioner filed a petition for a writ of habeas corpus with the California Supreme Court. (Resp't's Lod. Doc. 7.) On June 15, 2011, the California Supreme Court denied that petition, citing the decisions in In re Waltreus, 62 Cal.2d 218, 225 (1965) and In re Swain, 34 Cal.2d 300 (1949). (Resp't's Lod. Doc. 8.)

On June 30, 2010, petitioner signed his federal habeas petition and it was filed by this court on July 6, 2010. (Doc. No. 1.) On August 12, 2010, petitioner filed an amended petition which is the operative petition in this action. (Doc. No. 9.)

PARTIES' ARGUMENTS

I. Respondent's Motion to Dismiss

Respondent asserts that the statute of limitations for the filing of a federal habeas petition in this case began to run on December 10, 2008, when petitioner's judgment of conviction became final and the time to file a petition for writ of certiorari with the U.S. Supreme Court expired. (Doc. No. 20 at 3.) Respondent argues that petitioner is not entitled to statutory tolling of that limitations period based upon the filing of his first state habeas petition filed on March 3, 2008 and voluntarily dismissed by petitioner on April 18, 2008, since that petition was pending during a period when petitioner's judgment of conviction was not yet final and the statute of limitations had not yet begun to run. (Id.) As for petitioner's second state petition filed on December 26, 2010 with the California Supreme Court, respondent argues that the statute of limitations for the filing of a federal petition had already expired by the time that petition was filed and that it cannot serve to toll the already expired statute of limitations. (Id. at 4.)*fn3

According to respondent, the statute of limitations commenced on December 10, 2008 and expired on December 9, 2009. (Id. at 5.) Petitioner did not file his federal habeas petition until June 30, 2010, over six months after the statute of limitations for doing so expired. (Id.) Since petitioner's second state habeas petition was filed with the California Supreme Court after the statute of limitations for the filing of a federal petition had expired, it does not serve to extend the statute of limitations period. (Id.) Therefore, respondent argues, the federal habeas petition before the court was untimely filed and must be dismissed. (Id.)

II. Petitioner's Opposition

Petitioner acknowledges that he was informed by his appellate counsel in state court that he had one year to challenge his sentence and that the California Supreme Court denied his petition for review on September 10, 2008. (Doc. No. 26 at 2.) Petitioner contends that he attempted to conduct legal research but that High Desert State Prison (HDSP), where he was incarcerated, was on lockdown for over 500 days from October 23, 2008 through May 18, 2011. (Id.) Petitioner has provided a list of dates when that facility was on lockdown status. (Id. at 6-7.) Petitioner asserts that during these lockdowns he had limited access to the prison law library and was unable to conduct legal research and "to obtain the proper forms in order to respond." (Id. at 2.) Petitioner also contends that the law library at HDSP is inadequate even during normal program time, that it has only two computers and that only two to four hours per month are provided for general legal use, which for a one-year ...


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