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Michael Aaron Witkin v. James A. Yates

January 29, 2013

MICHAEL AARON WITKIN, PETITIONER,
v.
JAMES A. YATES, WARDEN,
RESPONDENT.



ORDER AND 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. By this action, petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court in 2005 for resisting an executive officer by use of force and violence in violation of California Penal Code § 69. This matter is now before the court on respondent's motion to dismiss the action as barred by the applicable statute of limitations.*fn1

PROCEDURAL BACKGROUND

This habeas action has a lengthy and complicated procedural history. On December 9, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus in the United States District Court for the Central District of California (hereinafter "Central District"). On January 8, 2010, the Central District transferred the case to this court.

On January 29, 2010, this court issued findings and recommendations recommending dismissal of this habeas action as barred by the one year statute of limitations codified at 28 U.S.C. § 2244(d). (Doc. No. 10.) On February 22, 2010, petitioner filed objections to those findings and recommendations. (Doc. No. 11.) In those objections, petitioner argued that he was entitled to equitable tolling of the limitations period for the filing of a federal habeas application because he had received ineffective assistance of appellate counsel and because he was actually innocent of the resisting charge upon which he was convicted. (Id.) On June 17, 2010, this court vacated the January 29, 2010 findings and recommendations and directed respondent to file a response to the petition. (Doc. No. 14.)

On August 16, 2010, respondent moved to dismiss the pending federal habeas petition as time-barred. (Doc. No. 18.) By order filed October 18, 2010, the parties were directed by the court to file supplemental briefing addressing whether petitioner was in custody on his 2005 judgment of conviction at the time that he commenced this federal habeas action. (Doc. No. 21.) Both parties filed supplemental briefing as directed. In his supplemental brief, respondent added a request that this habeas action be dismissed for lack of jurisdiction, contending that petitioner was not in custody with respect to his 2005 judgment of conviction when this federal habeas action was filed. (Doc. No. 25.)

On December 20, 2010, this court issued an order finding, inter alia, that petitioner was, at the time this federal habeas action was filed, in custody pursuant to a 2009 judgment of conviction entered against him and that his sentence on that 2009 conviction had been enhanced by his 2005 conviction. (Doc. No. 29.) Good cause appearing, the court referred the matter to the Office of the Federal Defender for the limited purpose of advising petitioner concerning issues related to second or successive petitions and granted petitioner forty-five days to request voluntary dismissal of this action without prejudice in light of that finding. (Id.) Thereafter, on January 21, 2010, the pro se petitioner filed supplemental briefing. (Doc. No. 30.) Petitioner did not, and has not, sought the voluntary dismissal of this action.

On February 11, 2011, the undersigned issued findings and recommendations recommending that this action be construed as a challenge to petitioner's 2009 conviction and sentence as enhanced by his 2005 conviction, that respondent's motion to dismiss be denied, and that respondent be granted an additional thirty days in which to either move to dismiss or answer the claims raised in the petition. (Doc. No. 30.) Petitioner filed objections to those findings and recommendations. (Doc. No. 32.) On March 10, 2011, the district court adopted the February 11, 2011 findings and recommendations in full. (Doc. No. 35.)*fn2

On April 4, 2011, petitioner filed a motion for reconsideration of the assigned District Judge's March 10, 2011 order. (Doc. No. 39.) On April 5, 2011, respondent filed a motion to dismiss this action. (Doc. No. 38.) On April 7, 2011, petitioner filed a document styled as a motion for an order of contempt. (Doc. No. 41.) On May 2, 2011, petitioner filed a motion for an extension of time to file an opposition to respondent's motion to dismiss. (Doc. No. 43.) Petitioner filed his opposition to the motion to dismiss on May 9, 2011, an amendment to that opposition on May 13, 2011, and a second amendment to his opposition to the motion to dismiss on May 20, 2011. (Doc. Nos. 44, 46 & 48.) On October 13, 2011, petitioner filed a motion to supplement his opposition yet again. (Doc. No. 51.)

On September 15, 2011, petitioner filed a motion to amend his habeas petition. (Doc. No. 50.) Petitioner then filed a proposed first amended petition on November 18, 2011.

(Doc. No. 52.) Finally, on November 28, 2011, petitioner filed a second motion for reconsideration of the assigned District Judge's March 10, 2011 order construing this action as a challenge to petitioner's 2009 judgment and sentence as enhanced by his 2005 conviction. (Doc. No. 53.)

On December 14, 2011, this court issued an order and findings and recommendations in light of the new arguments being presented by petitioner in his various voluminous filings. (Doc. No. 55.) Therein, the court, inter alia, recommended that the district court granted petitioner's motions for reconsideration, vacate its March 10, 2011 order construing this action as a challenge to petitioner's 2009 judgment and sentence as enhanced by his 2005 conviction, and refer the matter back to the undersigned for further proceedings. (Doc. No. 55 at 8.) In those findings and recommendations, the court also indicated its intention, if the recommendation was adopted, to reconsider respondent's contention that petitioner's challenge to his 2005 conviction was time-barred and to set a supplemental briefing schedule. Id. at 6-8.

On January 4, 2012, the assigned District Judge adopted the December 14, 2011 findings and recommendations in full. The parties have now filed supplemental briefing on the question of the timeliness of the habeas petition pending before the court.

ANALYSIS

Section 2244(d) of Title 28 of the United States Court contains a statute of limitations for filing a habeas petition in federal court:

(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.

(2) The time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244. The relevant chronology of this case is as follows:

1. On June 29, 2005, petitioner was convicted of resisting an executive officer by use of force and violence in violation of California Penal Code § 69. (Lodged Doc. No. 1, Abstract of Judgment filed in Sacramento County Superior Court on Dec. 14, 2005.)

2. On December 9, 2005, petitioner was sentenced to two years in state prison with respect to that conviction. (Id.)

3. On November 14, 2006, petitioner was paroled from state prison. (Lodged Doc. No. 4, Chronological History Log.)

4. On May 11, 2007, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. (Lodged Doc. No. 2.) Petitioner did not seek review in the California Supreme Court.

5. On or about September 5, 2008, petitioner signed and dated a petition for writ of habeas corpus to the California Supreme Court. (Lodged Doc. No. 3.) A certificate of service appended to the petition is dated October 23, 2008, and the petition was filed stamped in the state supreme court on October 24, 2008. (Id.) That petition was denied on December 10, 2008. (Lodged Doc. No. 4.)

6. On December 9, 2008, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Lodged Doc. No. 5.) That petition was denied by ...


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