May 17, 2013
CLARENCE A. GIBSON, Petitioner,
G. D. LOUIS, Warden PBSP, Respondent.
ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AS TIME-BARRED
ARTHUR NAKAZATO, Magistrate Judge.
Before the Court is a petition for writ of habeas corpus ("Petition") brought by Clarence A. Gibson ("Petitioner"), a state prisoner proceeding pro se. The Petition is brought pursuant to 28 U.S.C. § 2254 and, liberally construed, raises two claims directed at a 29-year-to-life sentence that was imposed on February 7, 1992, pursuant to Petitioner's conviction in the California Superior Court for Los Angeles County. Petitioner was convicted of first degree murder and second degree robbery with a firearm enhancement (case no. BA016268).
For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is considerably time-barred.
A. Standard of Review
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to "promptly examine" a habeas petition and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court also provides "[t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an untimely habeas petition may be dismissed sua sponte if the court gives the petitioner l adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).
B. Statute of Limitations
The Petition is governed by the Antiteuorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period is triggered by "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
However, where the conviction became final before AEDPA's enactment, a petitioner had until April 24, 1997, to file a federal habeas petition. See Lindh v. I Murphy, 521 U.S. 320, 322, 117 S.Ct. 2059 (1997) (AEDPA was signed into law on April 24, 1996); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the one-year grace period for challenging convictions finalized before AEDPA's enactment ended on April 24, 1997).
The face of the Petition, attached exhibits, and relevant state court records establish the following facts. Petitioner was convicted of the above offenses on September 11, 1991, and sentenced on February 7, 1992. 0n December 27, 1993, the California Court of Appeal affirmed the judgment (case no. B066355). The California Supreme Court then denied review of the court of appeal's decision on March 23, 1994 (case no. S037699). Petitioner has not alleged, and it does not appear, that he filed a petition for certiorari with the United States Supreme Court. (Pet. at 2; state court records.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on June 21, 1994, the ninetieth day after the state high court denied his petition for review and the last day for him to file a petition for certiorari with the Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Because the conviction became final before AEDPA's April 24, 1996 enactment date, Petitioner had until April 24, 1997 to file a federal habeas petition. Patterson, 251 F.3d at 1246. Petitioner did not constructively file his pending Petition until April 21, 2013 - 5, 841 days (approximately 16 years) after the expiration of the limitations period Accordingly, absent some basis for tolling or an alternative start date to the limitations period under 28 U.S.C. § 2244(d)(1), the pending Petition is considerably time-barred.
C. Statutory Tolling
AEDPA includes a statutory tolling provision that suspends the limitations period for the time during which a "properly-filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall , 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey , 425 F.3d 1145, 1148 (9th Cir. 2005). An application is "pendmg" until has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134 (2002). However, to qualify for statutory tolling, a state habeas petition must be filed before the expiration of AEDPA's limitations period. See Ferguson v. Palmateer, F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); see also Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 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.").
The face of the Petition, attached exhibits, and relevant state court records establish Petitioner filed three state habeas petitions, one in the superior court (case no. BA016268), one in the court of appeal (case no. B246778), and one in the California Supreme Court (case no. S209054), all of which were denied. (Pet. at 5-6, Exs. F-H; state court records.) However, the first of those petitions was not filed until September 4, 2012 (Pet., Ex. F), 5, 612 days after AEDPA's limitations period expired on April 24, 1997. As a result, Petitioner is not entitled to any statutory tolling. Ferguson, 321 F.3d at 823; Webster, 199 F.3d at 1259.
D. Alternative Start of the Statute of Limitations
1. State-Created Impediment
In rare instances, AEDPA's one-year limitations period can run from "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." 28 U.S.C. § 2244(d)(1)(B). Asserting that the statute of limitations was delayed by a state-created impediment requires establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
2. Newly Recognized Constitutional Right
AEDPA provides that, if a claim is based upon a constitutional right that is newly recognized and applied retroactively to habeas cases by the United States Supreme Court, the one-year limitations period begins to run on the date which the new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
3. Discovery of Factual Predicate
AEDPA also provides that, in certain cases, its one-year limitations period shall run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
E. Equitable Tolling
AEDPA's limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2560 (2010). Specifically, "a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079 (2007).
However, "[e]quitable tolling is justified in few cases" and "the threshold necessary to trigger equitable tolling [under AEDP A] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Additionally, although "we do not require [the petitioner] to carry a burden of persuasion at this stage in order to merit further investigation into the merits of his argument for [equitable] tolling, " Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), "[w]here the record is amply developed, and where it indicates that the [alleged extraordinary circumstance did not] cause the untimely filing of his habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's allegations...." Roberts v. Marshall, 627 F.3d, 768, 773 (9th Cir. 2010); see also Elmore v. Brown, 378 Fed.Appx. 664, 666 (9th Cir. 2010) ("[W]here the record is sufficient to permit the district court- and us on appeal - to evaluate the strength. of the petitioner's [equitable tolling] claim, the district court does not necessarily abuse its discretion if it denies the petitioenr a hearing.") (cited pursuant to 9th Cir. R. 36-3).
Although the Petition is prolix and difficult to construe, the Court finds Petitioner is challenging the trial court's failure, at the time of sentencing, to consider him for civil commitment in the California Youth Authority, instead of remanding him to serve his criminal sentence there before his eventual transfer to an adult prison. (Pet., attached pages ("Attach.") at 2-15.) He also claims his appellate counsel was ineffective for failing to raise this issue on appeal. (Attach. at 6, 8-12, 15.) In articulating these claims, Petitioner places considerable emphasis on his allegation that "prognostic amenability psychiatric youth authority psychologist reports" ("Reports") have been wrongly removed from his central file. He claims these documents would show he was eligible for civil commitment, and that his failure to file a habeas petition sooner was caused by their disappearance and his subsequent efforts to obtain them. (Pet. at 3; Attach. at 1-2.)
Giving Petitioner the benefit of all doubt, and construing the Petition as liberally as possible, the Court finds Petitioner's allegations about the Reports constitute an argument for equitable tolling. However, that argument fails both Pace requirements. Pace, 544 U.S. at 418.
First, the absence of the Reports could not have caused Petitioner's untimeliness because he has not been pursuing his rights diligently. By Petitioner's own admission, he did not attempt to locate the Reports or take any action in regard to his sentence until he began preparing for a November 26, 2012 parole consideration hearing. Indeed, he was not even informed anything was missing from his file until September 2012, at which time he claims he began making various requests and filing various petitions. (Pet. at 3.) In other words, by the time Petitioner made his first attempt to obtain the Reports, his pending Petition was already untimely by more than 15 years. He falls grossly short of satisfying Pace's diligence requirement. See Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) ( Pace's diligence prong requires the petitioner to show he engaged in reasonably diligent efforts to file his petition throughout the time the limitations period was running); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("[T]he patty seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll.").
Second, there is no reason to conclude the alleged action on the part of the government - the removal of the Reports from Petitioner's file - constituted an "extraordinary circumstance." Pace, 544 U.S. at 418. Again, by Petitioner's own admission, he was aware of the basis of the claims he now raises as early as 1993, because he states that he asked his appellate counsel to raise the civil commitment issue on direct appeal. (Attach. at 6.) While Petitioner may posit that he cannot succeed on his claims without the Reports, it is clear their absence did not prevent him from discovering the issue or filing a timely habeas petition challenging his sentence, which was imposed more than 21 years ago. See Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) ( Pace's "extraordinary circumstances" prong requires the petitioner to "additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances made it impossible to file a petition on time.") (internal quotation marks and citations omitted); see also Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011) (equitable tolling rejected where delay in filing was "the result of [the petitioner's] own actions" and not the result of an "external force").
Neither the face of the Petition nor Petitioner's attached exhibits show Petitioner is entitled to any equitable tolling.
Based on the foregoing, the Court finds this action is untimely. Accordingly, Petitioner shall have until June 6, 2013, to file a written response and show cause why his Petition should not be dismissed with prejudice because it is time-barred. In responding to this Order, Petitioner must show by declaration and any properly authenticated exhibits what, if any, factual or legal basis he has for claiming that the Court's foregoing analysis is incorrect, or that AEDPA's one-year statute of limitations should be tolled, or the start date extended.
Petitioner is warned that if a timely response to this Order is not made, Petitioner will waive his right to respond and the Court will, without further notice, issue an order dismissing the Petition, with prejudice, as time-barred.
Further, if Petitioner determines the Court's analysis is correct and the Petition is time-barred, he should consider filing a Request For Voluntary Dismissal of this action pursuant to Fed.R.Civ.P. 41 (a)(1) in lieu of a response.
IT IS SO ORDERED.