The opinion of the court was delivered by: George H. WU U.S. District Judge
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. On June 5, 2012, Respondent filed Objections to the Report and Recommendation. Petitioner did not file a response to the Objections.
Respondent argues that the 70-day delay between Petitioner's filing of his California Court of Appeal habeas petition and his California Supreme Court habeas petition was not "reasonable," Petitioner was therefore not entitled to "gap" tolling of that period, and the Magistrate Judge erred in finding to the contrary. (Objections at 3-9.) The Magistrate Judge found that the 70-day period was reasonable because during that time Petitioner significantly revised his habeas petition to add a claim that he had not presented in his court of appeal habeas petition -- specifically, he added the sentencing-error claim he unsuccessfully tried to raise before the superior court in his "Modification of Sentence" motion, along with revised argument and citations to evidence from the record. (Compare Lodged Doc. 9 ("Modification of Sentence Pursuant to Penal Code Section 1260") with Lodged Doc. 11 (supreme court habeas petition).)
In his Objections, Respondent argues that the addition of that claim does not justify the 70-day delay because Petitioner was "not seeking review of the lower court's ruling with respect to that claim" but rather was "embarking on a new round of collateral review." (Objections at 7.) But Petitioner was indeed seeking review of a lower court's ruling: shortly after the court of appeal denied his habeas petition, the superior court denied his sentencing-error claim, and Petitioner then revised it substantially in order to correct its deficiencies before presenting it to the state supreme court as part of his habeas petition. Cf. King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (gap tolling applies to period between denial of one petition and filing of another when petitioner revises petition to "correct the deficiencies" in the prior one), abrogation on other grounds recognized by Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008).
Several factors support the Magistrate Judge's conclusion that the 70-day gap in this case was reasonable. First, the length of the gap beyond the presumptively reasonable 60 days was relatively modest, a mere 10 days. Very few courts have found gaps between 60 and 70 days to be unreasonable. See Gonzales v. Hubbard, No. CV 11--3395--GAF (AGR), 2011 WL 6951958, at *3 (C.D. Cal. Nov. 28, 2011) (noting that "Respondent has failed to identify any court that has found a delay of between 61 and 70 days unreasonable, even if completely unexplained"), accepted by 2012 WL 28649 (C.D. Cal. Jan. 4, 2012); Wynn v. Martel, No. CIV S--09--2728 JAM DAD P, 2011 WL 864500, at *6 (E.D. Cal. Mar. 10, 2011) (noting that "district courts in California have generally found that even unexplained delays of 61 to 70 days in pursuing relief between courts are not unreasonable," and collecting cases), accepted by 2011 WL 1811109 (E.D. Cal. May 12, 2011); but see (Objections at 6 (listing three unpublished district court decisions in which unexplained or patently illegitimate gaps between 65 and 70 days were suggested to be unreasonable)). Second, the state superior court did not deny Petitioner's sentence-modification motion until February 3, 2011 -- barely more than a month before Petitioner filed his state supreme court habeas petition, on March 9, 2011. During that interval, Petitioner substantially rewrote the claim in an attempt to correct its deficiencies before presenting it to the supreme court. Third, Petitioner is thus unlike those claimants who essentially sit on their hands during gaps longer than presumptively reasonable and offer no explanation for the additional delay.
None of the cases Respondent cites involve analogous facts and thus do not compel a conclusion different from that reached by the Magistrate Judge. See King, 340 F.3d at 823 (addressing propriety of gap tolling between denial of first petition to California Supreme Court and later, "separate round" of petitions commencing in court of appeal); McCoy v. Hedgpeth, No. 11-0653- MMA (WVG), 2011 WL 6961023, at *4 (S.D. Cal. Aug. 3, 2011) (analyzing gap tolling for period between two separate petitions filed in same court of appeal when second petition "added two new claims" that were "unrelated to the first Petition"), accepted by 2012 WL 33077 (S.D. Cal. Jan. 6, 2012); Hemmerle v. Schriro, 495 F.3d 1069, 1075-76 (9th Cir. 2007) (gap tolling unavailable for time between petitioner's filing of two preliminary check-box notices of intent to seek post-conviction relief when first notice did not include "any supporting documentation or factual elaboration" and thus did not raise a "claim" that could be tolled).
In particular, McCoy, the case that at first blush might seem most analogous to this one, specifically rests on the fact that the two petitions at issue were filed in the same court, rendering the second one clearly successive. See 2011 WL 6961023, at *3 ("Statutory tolling is unavailable for the interval between successive filings in the same court," and citing cases; "The Ninth Circuit applies a two part test to determine whether the period between the denial of one petition and the filing of a second petition in the same court should be tolled," and citing cases). (Hemmerle, too, concerns a successive petition filed in the same court and the gap between it and the first petition in that court. See 495 F.3d at 1075.) Here, by contrast, what's at issue is the gap between a court of appeal habeas petition raising three claims and a subsequent habeas petition raising those same three claims plus one additional one. Given that the California Supreme Court is a court of original jurisdiction and thus one in which habeas claims may be raised for the first time, the distinction is not insignificant. Moreover, the gap at issue in McCoy, almost five months, see 2011 WL 6961023, at *4, is substantially longer than the 70 days here. Certainly anything more than the very modest delay at issue here would likely not be appropriate in these circumstances. Finally, the second petition in McCoy contained mostly new claims and thus truly was attempting to initiate an entirely separate round of review, see id., whereas the state supreme court petition here consisted primarily of claims Petitioner had raised in his court of appeal petition and thus was simply a continuation of the first and only round of post-conviction review.
In sum, the Court is not awarding Petitioner gap tolling between a first round of post-conviction review and a second, separate round. Indeed, the Report and Recommendation recommended that Petitioner not receive tolling for the pendency of the Modification of Sentence motion. (See Report & Recommendation at 8-9.) Rather, the Court simply concludes that given Petitioner's substantial rewriting of the claim raised in that motion before presenting it (as well as three claims that were in his state court of appeal habeas petition) to the state supreme court, the short 10-day delay beyond the presumptively reasonable 60-day period for filing a petition in the next highest court was itself reasonable. The Court therefore accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that Respondent's motion to dismiss is DENIED. Respondent is ORDERED to file an Answer to the Petition within 28 days of service of this Order.
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