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Kha v. Gipson

United States District Court, Ninth Circuit

July 8, 2013

Tue Tri Thanh Kha, Petitioner,
v.
Gipson (Warden), Respondent.

VALERIE BAKER FAIRBANK, District Judge.

CIVIL MINUTES - GENERAL

PROCEEDINGS (IN CHAMBERS): ORDER OVERRULING PETITIONER'S OBJECTIONS[1], ADOPTING THE REPORT AND RECOMMENDATION IN ITS ENTIRETY, PROVIDING SUPPLEMENTAL ANALYSIS, and DISMISSING THE PETITION AS UNTIMELY

The Court will adopt the well-reasoned Report and Recommendation ("R&R") in its entirety and dismiss the habeas petition as untimely. The Court will supplement the R&R, however, to note an additional reason why the petition is not rendered timely by Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012). Petitioner contends that Miller, which issued after his conviction became final, triggered the accrual of a new claim that is timely raised in this petition under AEDPA, 28 U.S.C. § 2244(d)(1)(C) ("the alternative-accrual-date provision"). Cf. Stinson v. Wenerowicz, ___ F.Supp.2d ___, 2013 WL 3084441, *3 n.4 (E.D. Pa. June 18, 2013) ("If Miller is held to apply retroactively to cases on collateral review, Stinson would have one year from the date of the Miller decision (June 25, 2012) to file a timely habeas petition in this Court.") (citing 28 U.S.C. § 2254(d)(1)(C)).[2] The Magistrate rightly rejects petitioner's reliance on Miller, finding it inapposite to the type of sentence petitioner received. The Court bolsters the Magistrate's conclusion by showing another reason why Miller does not render petitioner's claims timely: Miller does not meet the Teague standard for retroactivity.

The AEDPA period is deemed to begin running (i.e., a federal habeas claim accrues) later than it would otherwise if the claims are based on a U.S. Supreme Court holding that recognized a new constitutional right and that holding applies retroactively to cases pending on collateral review. See R&R at 4 (citing 28 U.S.C. § 2244(d)(1)(C) and Lee, 653 F.3d at 933). For two reasons, the Magistrate rightly rejects petitioner's argument that a new federal claim accrued when the Supreme Court issued Miller v. Alabama, 132 S.Ct. 2455 (2012).

For petitioner's sake this Court will assume arguendo - as two Circuits have held - that Miller announced a new rule of constitutional law. See In re Morgan, 713 F.3d 1365, 1367 (11th Cir. 2013), reh'g en banc denied, ___ F.3d ___, 2013 WL 2476318 (11th Cir. June 10, 2013); Craig v. Cain, ___ F.Appx. ___, 2013 WL 69128, *1 (5th Cir. Jan. 4, 2013) ("When Craig's conviction became final, Miller was not dictated by precedent. Instead, Miller established for the first time a requirement of individualized sentencing outside the death penalty context.") (citation omitted). Even assuming Miller announced a new rule of constitutional law, however, petitioner's reliance on Miller is misplaced. Neither the Supreme Court nor our Circuit has expressly held that Miller is retroactively applicable to all cases which had become final and were on collateral review when Miller issued. Accord Morgan, 713 F.3d at 1365 ("[B]ut... Miller has not been made retroactive on collateral review."), on remand, ___ F.Supp.2d ___, 2013 WL 3293472, *2 (N.D. Fla. June 27, 2013) (Stafford, Sr. D.J.) (" Miller established a new rule of constitutional law but that decision has not been made retroactive on collateral review.").

Next, a footnote in the R&R merits discussion because it reflects the premise that any federal court, not just the Supreme Court, can decide whether a new rule announced by the Supreme Court should apply retroactively to cases on collateral review. While this proposition does not appear to be squarely established by appellate authority in our circuit yet, the Magistrate's premise is sound. She states as follows:

[C]ourts have disagreed whether Miller applies retroactively to cases on collateral review, which is another prerequisite to the alternative accrual date under Section 2244(d)(1)(3) [sic]. * * * Given that Petitioner does not present a valid Miller claim, the Court need not determine whether that decision applies retroactively to completed cases.

R&R at 7 n.3 (emphasis added). This Court has not located any Supreme Court or Ninth Circuit precedent holding that lower courts may make the retroactivity determination for purposes of § 2244(d)(1)(c). However, for reasons stated below, the Court concludes that this provision allows lower courts to determine retroactivity.

Elsewhere in AEDPA, a petitioner is entitled to rely on a rule of law which the Supreme Court announced after his conviction became final, only when the Supreme Court itself has expressly made that rule retroactive. In Tyler v. Cain , the Court considered whether a new rule announced in Cage (U.S. 1990) was "made retroactive to cases on collateral review by the Supreme Court" as required by 28 U.S.C. § 2244(b)(2)(A), a provision dealing with leave to file a second or successive petition. A four-Justice plurality held as follows:

AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications. * * * [I]f the prisoner asserts a claim that was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions. One of these exceptions is for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. § 2244(b)(2)(B). The other is for certain claims relying on new rules of constitutional law. § 2244(b)(2)(A).
It is the latter exception that concerns us today. Specifically, § 2244(b)(2)(A) covers claims that "rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." This provision establishes three prerequisites to obtaining relief in a second or successive petition: First, the rule on which the claim relies must be a "new rule" of constitutional law; second, the rule must have been "made retroactive to cases on collateral review by the Supreme Court"; and third, the claim must have been "previously unavailable." In this case, the parties ask us to interpret only the second requirement
.... Based on the plain meaning of the text read as a whole, we conclude that "made" means "held" and, thus, the requirement is satisfied only if this Court has held that the new rule is ...

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