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Raymond Wright v. J.N. Katavich

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA- WESTERN DIVISION


August 8, 2012

RAYMOND WRIGHT, PETITIONER,
v.
J.N. KATAVICH, WARDEN,
RESPONDENT.*FN1

The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. For the reasons stated below, the Petition for a Writ of Habeas Corpus is denied and this action is dismissed with prejudice.

I. PROCEEDINGS

Petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his 1999 conviction in the Superior Court of California, Los Angeles County (Case No. BA187528).*fn2

On April 25, 2012, petitioner filed aPetition for Writ of Habeas Corpus by a Person in State Custody ("Petition"). As best the Court can glean from petitioner's allegations, the Petition alleges the following claims: (1) The trial court, the prosecutor and petitioner's counsel failed to inform petitioner about the prosecutor's burden of proving that petitioner suffered two prior serious or violent felony convictions (1986 and 1990 robbery convictions in Florida) -- proof of which was lacking -- in violation of petitioner's rights to due process and equal protection; (2) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to require proof of his two prior serious or violent felony convictions; and (3) Petitioner's sentence constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Petition at 5-5F; Petitioner's Reply to Respondent's Return at 3-7).

On May 16, 2012, petitioner filed a Notice of Supplemental Petition for Writ of Habeas Corpus which contained various exhibits relating to the claims alleged in the Petition.

On May 17, 2012, petitioner filed a Notice of Supplemental Petition for Writ of Habeas Corpus which contained various exhibits relating to the claims alleged in the Petition.

Respondent filed an Answer to the Petition on May 21, 2012. After receiving an extension of time, on July 19, 2012, respondent filed a Return to the Petition, contending that the Petition should dismissed because it is barred by the one-year statute of limitations.

On July 30, 2012, petitioner filed a Supplemental Petition for Writ of Habeas Corpus which contained various exhibits relating to the claims alleged in the Petition.

Petitioner filed a Reply to the Return on August 6, 2012. Thus, this matter now is ready for decision.

II. PROCEDURAL HISTORY

In an Amended Information filed in the Los Angeles County Superior Court on October 1, 1999, petitioner was charged with one count of possession of cocaine base for sale and was further charged with the special allegations that he had suffered two prior serious or violent felony convictions and five prior prison terms. (See respondent's Notice of Lodging ["Lodgment"] No. 3).

On November 9, 1999, petitioner was convicted pursuant to a guilty plea of one count of possession of cocaine base for sale, and petitioner admitted the special allegations. On that same date, after granting petitioner's motion to strike one prior "strike," the trial court sentenced petitioner to state prison for a total of ten years, consisting of 5 years for the possession of cocaine base for sale conviction, doubled under California's "Three Strikes Law"*fn3 , and stayed sentences for the prior prison term findings. (See Lodgment Nos. 1 and 2).

Petitioner did not appeal his conviction to the California Court of Appeal. (See Petition at 2-3).

On September 25, 2011, petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, alleging claims corresponding to the first through third claims alleged in the Petition herein. (See Lodgment No. 5; Petition at 3-4).*fn4

On October 5, 2011, the California Court of Appeal summarily denied that habeas petition without citation of authority. (See Lodgment No. 6).

On December 17, 2011, petitioner filed a habeas petition with the California Supreme Court, wherein he alleged claims corresponding to the first through third claims alleged in the Petition herein. (See Lodgment Nos. 7 and 8; Petition at 4).*fn5 On March 21, 2012, the California Supreme Court denied that habeas petition with citation to In re Clark, 5 C al. 4th 750, 767-69 (1993), People v. Duvall, 9 Cal.4th 464, 474 (1995), In re Dixon, 41 Cal.2d 756, 759 (1953), and In re Swain, 34 Cal.2d 300, 304 (1949). (See Lodgment No. 9).

The instant Petition was signed on April 11, 2012, mailed on April 15, 2012, lodged on April 20, 2012, and filed on April 25, 2012.*fn6

III. DISCUSSION

A. Absent grounds to either delay the running of or equitably toll the statute of limitations, the Petition is untimely.

Federal habeas corpus relief is governed by statute and codified in Title 28, United States Code at Sections 2241-2255. In an attempt to "curb delays, to prevent 'retrials' on federal habeas, and to give effect to state convictions to the extent possible under law," Congress, as part of the Anti-terrorism and Effective Death Penalty Act of 1996, revised several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). One such revision amended 28 U.S.C. § 2244 to include a one-year statute of limitation for state prisoners seeking federal habeas relief.*fn7

A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, must seek federal habeas relief "within one year of the date his process of direct review came to an end." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc).

Here, since petitioner did not appeal his conviction or sentence, his conviction became final on January 10, 2000 (a Monday), sixty days after the date of petitioner's sentencing. See Cal. Rules of Court, Rule 8.308(a); former Cal. Rules of Court, Rule 31(a). The one-year limitations period therefore began to run against petitioner on January 10, 2000. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner therefore had until January 10, 2001 to timely seek federal habeas relief.

Petitioner's state habeas petitions were filed after the one-year statute of limitations expired. (See Lodgment Nos. 5, 7 and 8). Thus, petitioner's state habeas petitions did not statutorily toll the limitations period. See 28 U.S.C. § 2244(d)(2); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (28 U.S.C. § 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed."), cert. denied, 540 U.S. 924 (2003).

Petitioner did not file his Petition until April 15, 2012, more than eleven years after the deadline. Therefore, the Petition is untimely absent grounds for statutory and/or equitable tolling.

2. Petitioner has not alleged grounds for either delaying or equitably tolling the statute of limitations.

Under 28 U.S.C. § 2244(d), the statute of limitations begins to run the later of four possible dates. 28 U.S.C. § 2244(d)(1)(A)-(D).

Petitioner contends that he did not know that his constitutional rights had been denied until September 16, 2011, the date he received the transcripts of his prior convictions (and the date of his sentence in Case No. BA379739), or until December 8, 2011, the date he received "exculpatory evidence" (i.e., "documents explaining elements and conduct of a robbery in Florida"). It appears that petitioner is claiming that the statute of limitations did not begin to run until September 16, 2011 or until December 8, 2011, "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence" within the meaning of 28 U.S.C. § 2244(d)(1)(D). (See Petition at 3, 5C ).

However, the factual predicate of the claims alleged in the Petition herein could have been discovered earlier had due diligence been exercised. Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001)(stating that the statute of limitations begins to run when the prisoner knows, or through diligence could discover, the important facts, not when the prisoner recognizes their legal significance). Petitioner was aware of the factual predicate of his current claims when, in 1999, he admitted the truth of the prior Florida convictions. Petitioner has failed to allege, or show, that he exercised due diligence in attempting to obtain the transcripts of his prior convictions or the other documents. Consequently, contrary to petitioner's assertion, the statute of limitations began to run on January 10, 2000.

The United States Supreme Court has recognized the availability of equitable tolling to the one-year statute of limitations in "extraordinary" circumstances, such as those involving "serious instances of attorney misconduct." Holland v. Florida, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010).

The Ninth Circuit has recognized the availability of equitable tolling in situations where "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Beeler, supra, 128 F.3d at 1289 (9th Cir. 1997) (emphasis added)(citations omitted). The words "extraordinary" and "impossible" suggest the limited availability of this doctrine. To date, the Ninth Circuit has found very few circumstances which warrant equitable tolling.*fn8 The lack of precedent finding circumstances worthy of equitable tolling suggests not only the scarce applicability of the doctrine, but also that the circumstances must truly rise to the occasion of being "extraordinary" and petitioner must be able to demonstrate that filing a timely petition was not possible.

Because petitioner has not shown he is entitled to statutory or equitable tolling, the Court finds that the Petition is untimely and therefore should be dismissed.

IV. ORDER

For the foregoing reasons, IT IS ORDERED that the Petition is denied and that the action is dismissed with prejudice.


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