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Michael Dwight Hill v. M. Spearman

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 4, 2013

MICHAEL DWIGHT HILL,
PETITIONER,
v.
M. SPEARMAN, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 5, 2012, bearing a service date of September 27, 2012. The Petition contains two claims of alleged sentencing error:

1. The trial court allegedly violated Petitioner's constitutional rights to a jury trial, due process and equal protection by sentencing Petitioner based on facts found by a judge and not a jury, in asserted violation of the principles set forth in Cunningham v. California, 549 U.S. 270 (2007) ("Cunningham") (Ground One); and

2. The trial court allegedly erred by imposing four consecutive terms of 25 years to life, assertedly without proof that Petitioner had suffered two prior convictions qualifying as strikes under California's Three Strikes Law (Ground Two).

Respondent filed an Answer on March 4, 2013, asserting that the Petition is untimely and that both claims are procedurally defaulted. Petitioner filed a Reply on March 29, 2013.

BACKGROUND

In 2002, a jury found Petitioner guilty of two counts of forcible rape by fear, forcible sexual penetration, and assault by means likely to cause great bodily injury (Respondent's Lodgment 1; Respondent's Lodgment 19, pp. 11-12; see People v. Hill, 2003 WL 21197136, at *1 (Cal. App. May 22, 2003)). The jury found true the allegations that Petitioner personally inflicted great bodily injury within the meaning of California Penal Code section 12022.8 (Respondent's Lodgment 19, pp. 11-12; see People v. Hill, 2003 WL 21197136, at *1). The court found true the allegations that Petitioner had suffered two prior forcible rape convictions qualifying as strikes under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (Respondent's Lodgment 1; Respondent's Lodgment 19, p. 14).*fn1 Petitioner received a sentence of 110 years to life (Respondent's Lodgment 1; Respondent's Lodgment 19, pp. 14-15; see People v. Hill, 2003 WL 21197136, at *1).

The California Court of Appeal affirmed the judgment (People v. Hill, 2003 WL 21197136, at *3). On August 13, 2003, the California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 3).

On June 24, 2004, the United States Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely"). On February 1, 2006, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, bearing a signature date of January 23, 2006, inter alia challenging Petitioner's sentence under Blakely (Respondent's Lodgment 4). The Superior Court denied the petition on February 2, 2006, stating that Petitioner's sentence was appropriate and that Blakely did not apply to Petitioner's circumstance (Respondent's Lodgment 4, first page; Respondent's Lodgment 19, p. 18).

On February 27, 2006, Petitioner filed a habeas corpus petition in the Court of Appeal, bearing a signature and service date of February 23, 2006 (Respondent's Lodgment 5). The Court of Appeal denied the petition on July 18, 2006, "without prejudice to any relief to which petitioner might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 200 [sic],*fn2 on California law" (Respondent's Lodgment 6).

According to the Superior Court docket, in approximately April of 2006, Petitioner filed in the Superior Court a habeas corpus petition which is not in the record (see Respondent's Lodgment 19, p. 18). The Superior Court denied this petition on April 24, 2006 (see Respondent's Lodgment 19, p. 18).

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham. The Superior Court docket shows that in or about March, 2007, Petitioner filed another habeas corpus petition which is not in the record (see Respondent's Lodgment 19, p. 18). The Superior Court denied the petition on March 19, 2007, ruling, inter alia, that Blakely was not retroactive and did not apply to Petitioner's case (see Respondent's Lodgment 19, pp. 18-19).

On March 13, 2009, Petitioner filed another habeas corpus petition in the Superior Court (Respondent's Lodgment 7).*fn3 The Superior Court denied the petition on March 19, 2009, on the ground that the claimed Eighth Amendment violations should have been raised on direct review (Respondent's Lodgment 7, first page; Respondent's Lodgment 19, p. 19).

In or about August, 2009, Petitioner filed another Superior Court habeas petition which is not in the record (see Respondent's Lodgment 19, p. 20). The Superior Court denied the petition on August 27, 2009, deeming the petition to be successive (Respondent's Lodgment 19, p. 20).

On October 14, 2009, Petitioner filed another habeas corpus petition in the Superior Court, which the Superior Court denied on November 4, 2009 (Respondent's Lodgments 8, 9).

On November 25, 2009, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied on May 20, 2010, with a citation to In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998) ("Robbins"), signifying that the court deemed the petition to be untimely (Respondent's Lodgments 10, 11).*fn4 ///

On August 5, 2010, Petitioner filed another habeas corpus petition in the Superior Court, bearing a signature date of July 27, 2010, which that court denied the same day (Respondent's Lodgments 14, 15).

On December 21, 2010, Petitioner filed a second habeas corpus petition in the Court of Appeal, bearing a signature date of December 15, 2010, which that court denied on December 29, 2010, with citations to: (1) People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259, 265, 886 P.2d 1252 (1995) ("Duvall"); (2) In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509, 855 P.2d 729 (1993) ("Clark"); (3) In re Gomez, 45 Cal. 4th 650, 88 Cal. Rptr. 3d 177, 199 P.3d 574 (2009) ("Gomez"); and (4) People v. Hicks, 6 Cal. 4th 784, 25 Cal. Rptr. 2d 469, 863 P.2d 714 (1993) ("Hicks") (Respondent's Lodgments 12, 13).*fn5

On February 24, 2011, Petitioner filed a second habeas corpus petition in the California Supreme Court, bearing a signature date of February 22, 2011, which that court denied on August 10, 2011, with citations to Robbins and Clark (Respondent's Lodgments 16, 17).

On January 3, 2012, Petitioner filed another habeas corpus petition in the Superior Court, which that court denied the same day on the ground Petitioner should have raised his claims on direct appeal (Respondent's Lodgment 18; Respondent's Lodgment 19, p. 22).

On February 9, 2012, Petitioner filed another habeas corpus petition in the Court of Appeal, which that court denied on April 20, 2012, as repetitive and with citations to Clark, Duvall and Gomez (Respondent's Lodgments 20, 21).

On May 1, 2012, Petitioner filed another habeas corpus petition in the California Supreme Court, which that court denied on July 11, 2012 with citations to Robbins and Clark (Respondent's Lodgments 22, 23).

DISCUSSION

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

(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.

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Petitioner's conviction would have become final on the expiration of 90 days from the California Supreme Court's August 13, 2003 denial of Petitioner's petition for review, had the 90th day (November 11, 2003) not been a holiday (Veteran's Day).*fn6 See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("direct review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts, [citation], and to this Court, [citation] has been exhausted"); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (period of "direct review" after which state conviction becomes final for purposes of section 2244(d)(1) includes the 90-day period for filing a petition for certiorari in the United States Supreme Court); see also Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (AEDPA's limitations period begins to run after entry of an amended judgment following resentencing). However, because November 11, 2003, was a holiday, Petitioner's conviction became final the next day, November 12, 2003. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal. App. 3d 1124, 1127 n.2, 253 Cal. Rptr. 910 (1988); former Cal. Ct. R. 31(a).*fn7

The statute of limitations began running on November 13, 2003, unless subsections B, C, or D of 28 U.S.C. section 2244(d)(1) furnish a later accrual date. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001); see also Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

Subsection B of section 2244(d)(1) is inapplicable. Petitioner has not shown, and it fails to appear, that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009). In the Reply, Petitioner appears to argue that the State is responsible for the delay because the Court of Appeal denied Petitioner's Blakely claim without prejudice and without ever addressing the claim on the merits (see Reply, p. 6). Plainly, however, the Court of Appeal's denial did not make it "impossible" for Petitioner to file a timely federal petition.

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)). Although Ground One of the Petition asserts a claim based on Cunningham, the United States Supreme Court has not held that Cunningham constitutes a new rule retroactively applicable to cases on collateral review. See Coyne v. Grounds, 2012 WL 5868623, at *3 (E.D. Cal. Nov. 19, 2012) ("[Cunningham] cannot provide a new triggering date, however, because the Supreme Court has not found its holding to be retroactive"); Schuller v. Horel, 2008 WL 3914171, at *1 n.2 (C.D. Cal. Aug. 25, 2008) (because no right was newly recognized in Cunningham, subsection C is inapplicable); Martinez v. Hedgepeth, 2008 WL 3154689, at *4 (E.D. Cal. Aug. 4, 2008) (because Cunningham was not a new rule, subsection C is inapplicable); Pimental v. Almager, 2008 WL 2757075, at *3 (C.D. Cal. July 14, 2008) (because "[t]he Supreme Court has not recognized Cunningham as a new rule," subsection C is inapplicable); see also Wright v. Dexter, 546 F.3d 1096, 1097 (9th Cir. 2008) (denying application to file second or successive petition asserting Cunningham claim under section 2244(b)(2), because Cunningham "did not announce a new rule of constitutional law") (citation omitted); Butler v. Curry, 528 F.3d 624, 633-39 (9th Cir.), cert. denied, 555 U.S. 1089 (2008) (holding Cunningham retroactive because Cunningham did not constitute a new rule).

The Blakely decision also does not warrant an accrual date later than November 13, 2003. In Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005), the Ninth Circuit held that Blakely was a "new rule" which did not apply retroactively on collateral review. Id. at 1034-38. The United States Supreme Court has not held Blakely to be retroactive. See Pickett v. Hall, 357 Fed. App'x 902, 903 (9th Cir. 2009), cert. denied, 130 S. Ct. 3792 (2010) (no delayed accrual for Blakely claim); Pettijohn v. Bartos, 248 Fed. App'x 845, 846 (9th Cir. 2007), cert. denied, 553 U.S. 1056 (2008) (delayed accrual inappropriate "because the Supreme Court has not held that Blakely is retroactively applicable to cases on collateral review").

Section 2244(d)(1)(D) does not furnish an accrual date later than November 13, 2003, for Petitioner's claims. Under section 2244(d)(1)(D), the "'due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S. Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); see also United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(d)(1)(D)). Petitioner, who was present at the trial of the prior conviction allegations and at sentencing (see Respondent's Lodgment 19, pp. 13-14), knew or should have known, no later than the time of sentencing, the "vital facts" underlying his claims of alleged sentencing error. See Frierson v. Lewis, 2011 WL 4964864, at *5 (C.D. Cal. Sept. 7, 2011), adopted, 2011 WL 4964866 (C.D. Cal. Oct. 24, 2011) (petitioner knew or should have known, by the date of sentencing, the "'important facts'" upon which he based his claims of sentencing error); Powelson v. Sullivan, 2006 WL 2263908, at *3 (N.D. Cal. Aug. 8, 2006) (petitioner not entitled to delayed accrual of claim challenging sentence, where petitioner was present at 1988 sentencing hearing, although petitioner allegedly did not obtain physical evidence supporting claim until 2005 when he looked in his prison file).

Neither Cunningham nor Blakely constitutes a "factual predicate" within the meaning of section 2244(d)(1)(D). See Singer v. Dir. of Corrections, 2010 WL 1444479, at *3 (C.D. Cal. Mar. 4, 2010), adopted, 2010 WL 1444475 (C.D. Cal. Apr. 2, 2010) (Cunningham did not provide the "factual predicate" for petitioner's challenge to his sentence); Sharp v. Martel, 2009 WL 789645, at *3-4 (S.D. Cal. March 17, 2009) (same); see also Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (intervening state court decision establishing abstract proposition of law arguably helpful to petitioner does not constitute a "factual predicate" under section 2244(d)(1)(D)). The running of the statute of limitations does not await the issuance of judicial decisions that help would-be petitioners recognize the legal significance of particular predicate facts. Singer v. Dir. of Corrections, 2010 WL 1444479, at *3 (citations omitted); see also Hally v. Scribner, 2007 WL 809710, at *3 (E.D. Cal. Mar. 15, 2007), adopted, 2007 WL 988066 (E.D. Cal. Apr. 2, 2007).

Accordingly, the statute of limitations began running on November 13, 2003, and, absent tolling, would have expired on November 12, 2004. See Patterson v. Stewart, 251 F.3d at 1246.

Petitioner constructively filed the present Petition on September 27, 2012, over seven years later.*fn8 Absent sufficient tolling, the Petition is untimely.

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state habeas petition. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). Petitioner constructively filed his first state habeas petition on January 23, 2006, more than a year after the statute of limitations had expired. Petitioner's numerous state habeas petitions filed after the expiration of the statute cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"). Therefore, Petitioner is not entitled to any statutory tolling.

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (citations omitted). "[A] 'petitioner' is entitled to 'equitable tolling' only if he shows '(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009) (citations and internal quotations omitted). Petitioner bears the burden of demonstrating equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of [the] untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Petitioner must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted).

Petitioner does not expressly assert an entitlement to equitable tolling. Rather, Petitioner argues that there purportedly exists "cause and prejudice" to excuse Petitioner's alleged failure to file a timely federal petition and Petitioner's alleged procedural default (see Reply, pp. 4-6). With respect to the claim alleged in Ground One, Petitioner appears to argue that the California Supreme Court's June 20, 2005 decision in People v. Black, 35 Cal. 4th 1238, 29 Cal. Rptr. 3d 740, 113 P.3d 534 (2005), vacated, 549 U.S. 1190 (2007), abrogated in Cunningham, 549 U.S. at 269-70 ("Black"), justifies any delay in filing a federal petition (Reply, p. 5). The Black decision held that California's statutory scheme providing for the imposition of an upper term sentence did not violate the constitutional principles set forth in Blakely. Black, 35 Cal. 4th at 1254-61. In Cunningham, the United States Supreme Court rejected Black. See Cunningham, 549 U.S. at 269-70. Petitioner appears to argue that he delayed filing his Cunningham claim because that claim allegedly was "barred by law" under Black (Reply, p. 5). Petitioner's argument must be rejected. Regardless of Black's effect on California law or proceedings in California state courts, Black did not prevent Petitioner from filing a timely petition in federal court.

With respect to the claim alleged in Ground Two, Petitioner contends his attorney ineffectively failed to challenge one of Petitioner's alleged strikes (Reply, p. 5). Regardless of whether any such alleged ineffectiveness could constitute cause for a procedural default, Petitioner knew or should of known of the alleged ineffectiveness no later than the date of sentencing, and hence has failed to demonstrate that the alleged ineffectiveness was "the cause of his untimeliness." See Spitsyn v. Moore, 345 F.3d at 799.

Petitioner's argument that California's timeliness rule for state habeas petitions lacks standards (see Reply, p. 6) is immaterial to the issue of the timeliness of his federal petition. In any event, the United States Supreme Court has rejected this argument. See Walker v. Martin, 131 S. Ct. 1120, 1128-30 (2011) (rejecting argument in the context of procedural default). Petitioner's further argument that, under California law, a challenge to a sentence as excessive purportedly is not governed by California's timeliness standards (see Reply, p. 7), also is immaterial to the issue of whether Petitioner timely filed his federal petition.

In sum, Petitioner has failed to demonstrate entitlement to any equitable tolling. The Petition is untimely.*fn9

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NO. CV 12-8615-PA(E)

MICHAEL DWIGHT HILL, ) Petitioner, v. M. SPEARMAN, Warden, Respondent.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS )) OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.


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