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Khrayan v. Lewis

United States District Court, C.D. California

February 13, 2014

GREG LEWIS, Respondent.


CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable John A. Kronstadt, 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.


In 2008, a Superior Court jury found Petitioner guilty of conspiracy to commit kidnapping for ransom, attempted kidnapping for ransom and assault with a semiautomatic firearm, and found true the allegation that a principal in the attempted kidnapping was armed with a firearm (Respondent's Lodgment 2). The Court of Appeal affirmed Petitioner's conviction (Respondent's Lodgment 5; see People v. Khrayan, 2012 WL 1077654 (Cal.App. Apr. 2, 2012)). On June 27, 2012, the California Supreme Court denied Petitioner's petition for review (Respondent's Lodgment 7).

Petitioner, represented by counsel, filed herein a "Petition for Writ of Habeas Corpus By a Person in State Custody, " which bears a "filed" stamp of October 2, 2013. Respondent filed a "Motion to Dismiss Petition, etc." on November 7, 2013, asserting that the Petition is untimely and partially unexhausted. Petitioner filed an "Opposition to Motion to Dismiss Petition, etc." ("Opposition") on December 6, 2013, accompanied by the Declaration of Eliseo Benitez ("Benitez Dec.") and exhibits.


In the present Petition, Petitioner contends: (1) the trial court allegedly violated Due Process by denying Petitioner's motion for a new trial based on "newly discovered" evidence; (2) the prosecution allegedly suppressed assertedly exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963); and (3) the prosecution allegedly violated Due Process by assertedly destroying evidence and failing to disclose the alleged destruction to the defense during trial.

By way of background, Petitioner's counsel asserted in the trial court on the date set for sentencing that counsel had received an anonymous letter in a police department envelope stating that certain items relating to the case had been destroyed (see Respondent's Lodgment 5, p. 16). After an evidentiary hearing, the trial court denied Petitioner's ensuing motion for a new trial (id., pp. 18-22). In upholding this denial, the California Court of Appeal stated that Petitioner's counsel himself had utilized at trial photocopies of many of the allegedly destroyed items and counsel had never requested that the originals be preserved or produced in court (with the exception of a single photograph of which counsel had a copy) (id., p. 23). The Court of Appeal ruled that the items in question were merely cumulative of the evidence presented at trial, that the fact of the destruction of the originals "constituted only impeachment evidence at best, " and that neither the items nor the fact of the originals' destruction rose "to the level of material evidence" (id.).


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 became final on September 25, 2012, upon the expiration of 90 days from the California Supreme Court's June 27, 2012 denial of review. 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). The statute of limitations began running on September 26, 2012, 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 does not allege, and the record does not show, 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).

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)).

Section 2244(d)(1)(D) does not furnish an accrual date later than September 26, 2012, 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). Petitioner raised in the California Court of Appeal his claims that trial court purportedly erred in denying Petitioner's motion for a new trial based on "newly discovered" evidence and that the prosecution assertedly violated Plaintiff's rights by suppressing and destroying evidence (see Respondent's Lodgment 5, pp. 22-29). By the time of the proceedings in the Court of Appeal, Petitioner clearly knew or should have known all of the "vital facts" underlying the same claims which Petitioner now reasserts in the present Petition.

Accordingly, the statute of limitations began running on September 26, 2012, and, absent tolling, expired on September 25, 2013. See Patterson v. Stewart , 251 F.3d at 1246. Petitioner concedes that, absent tolling, the limitations period expired on September 25, 2013 (see Opposition, p. 7-8).

Although bearing a "filed" stamp of October 2, 2013, the Petition also bears a "lodged" stamp of September 26, 2013, the day after the limitations period expired. The Court assumes arguendo that for limitations purposes the Petition was "filed" on September 26, 2013. On this assumption, absent tolling, the Petition was "filed" one day late.[1]

Because Petitioner did not file any state post-conviction petition, statutory tolling pursuant to 28 U.S.C. section 2244(d)(2) is unavailable. Petitioner argues an entitlement to equitable tolling, however.

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida , 560 U.S. 631, 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, 558 U.S. 897 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show 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 alleges that a legal assistant in the office of Petitioner's counsel, acting under the supervision of counsel, attempted to file the Petition electronically at approximately 4:00 p.m. on September 25, 2013, but assertedly was unable to do so because of "technical difficulties with the CM/ECF system in filing a case initiating document" (Benitez Dec., ¶¶ 1-4). According to Petitioner, after "numerous" unsuccessful attempts to file the Petition electronically, the legal assistant took the Petition to a FedEx office and arranged to send the Petition to the Court by overnight delivery, reportedly completing the transaction with FedEx at approximately 5:34 p.m. on September 25, 2013 (id., ¶¶ 4-6; see Opposition, Ex. B). As indicated above, the Petition was lodged in this Court the following day, September 26, 2013.

This Court's Local Rule 5-4.2(b)(2) expressly excludes "Claim-Initiating Documents" from eligibility for electronic filing. In accordance with Local Rule 3-2, a party must submit to the Clerk "in paper format" Claim-Initiating Documents, such as habeas corpus petitions.

Despite the existence of these Local Rules, Petitioner contends that his counsel attempted to file the Petition electronically because of a General Order of this Court: General Order 13-01 (see Opposition, p. 10). General Order 13-01 established a "Pilot Project" allowing certain case-initiating documents, not including habeas corpus petitions, to be filed electronically (see Opposition, Ex. A). The version of General Order 13-01 in operation in September of 2013 identified the "Pilot Project Cases" to which the General Order applied as only: (a) student loan cases; (b) patent, trademark and copyright cases; (c) social security cases; and (d) cases removed from state court (see id.). The General Order expressly stated: "In all other cases, Local Rule 3-2 will continue to apply until otherwise ordered by the Court" (see id.).[2]

Thus, General Order 13-01 did not include habeas corpus petitions among the "Pilot Project Cases" to which the General Order applied, and the General Order did not authorize the electronic filing of the present Petition. Nevertheless, counsel apparently claims to have believed the Petition could be filed electronically. If counsel actually held this belief, counsel and/or counsel's staff evidently misread the General Order and then attempted unsuccessfully to file the Petition through an unauthorized means on the last day of the limitations period. Furthermore, counsel and/or counsel's staff reportedly did not even commence this alleged attempt until it was already too late to file the Petition timely. The unauthorized electronic efforts reportedly commenced at approximately 4:00 p.m. on September 25, 2013; on that day, the Clerk's Office closed at 4:00 p.m.[3]

A misreading of the General Order, coupled with delay until it was too late to file the Petition with the Court on the last day of the limitations period, constituted the type of "garden-variety" attorney negligence which the Supreme Court and the Ninth Circuit have held cannot justify equitable tolling of the AEDPA statute of limitations. See Holland v. Florida , 130 S.Ct. at 2564 ("a garden variety claim of excusable neglect' [citation], such as a simple miscalculation' that leads a lawyer to miss a filing deadline [citation], does not warrant equitable tolling"); Lawrence v. Florida , 549 U.S. at 336-37 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel [citation]."); Velasquez v. Kirkland , 639 F.3d 964, 969 (9th Cir.), cert. denied, 132 S.Ct. 554 (2011) (petitioner "must have been delayed by circumstances beyond his direct control, and not be his or his counsel's own mistake") (citation, internal brackets and quotations omitted); Porter v. Ollison , 620 F.3d 952, 959 (9th Cir. 2010) ("Attorney negligence, including a miscalculation of a filing deadline, is not a sufficient basis for applying equitable tolling to the § 2244(d)(1) limitation period. [citation]."); Stillman v. LaMarque , 319 F.3d 1199, 1203 (9th Cir. 2003) (citation and footnote omitted) ("[R]outine instances of attorney negligence do not constitute an extraordinary circumstance' that requires equitable tolling."); see also Blount v. Biter, 2012 WL 3150943, at *7-8 (C.D. Cal. Aug. 2, 2012) (counsel's allegedly negligent failure to sign up to receive electronic notification of a state court's ruling held insufficient to warrant equitable tolling); Franklin v. McEwen, 2010 WL 5563570, at *6-7 (C.D. Cal. Dec. 7, 2010), adopted, 2011 WL 91340 (C.D. Cal. Jan. 11, 2011) (counsel's errors, including misreading a state court local rule, held insufficient to warrant equitable tolling); Beck v. Warden, 2008 WL 5113649, at *3 (E.D. Cal. Nov. 25, 2008) (counsel's misunderstanding regarding electronic filing procedures and the mailbox rule held insufficient to warrant equitable tolling).[4]

The fact that the present Petition was lodged only one day after the statute of limitations expired cannot provide a basis for equitable tolling or for otherwise avoiding the sometimes harsh consequences of the statute of limitations. See, e.g., Rouse v. Lee , 339 F.3d 238, 253 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004) (barring as untimely a federal habeas petition filed one day late in a death penalty case); Lattimore v. Dubois , 311 F.3d 46, 53-54 (1st Cir. 2004), cert. denied, 538 U.S. 966 (2003) (dismissing as untimely a federal habeas petition filed one day after the expiration of the statute of limitations' grace period); United States v. Marcello , 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 531 U.S. 878 (2000) ("Foreclosing litigants from bringing their claim because they missed the filing deadline by one day may seem harsh, but courts have to draw the lines somewhere [and] statutes of limitations protect important societal interests.... The petitioner's argument that the deadline was unclear also makes no sense, because if it was unclear, they should have filed by the earliest possible deadline, not the latest. The deadline simply was missed. That is not grounds for equitable tolling"); cf. United States v. Locke , 471 U.S. 84, 100-01 (1985) ("If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it.... A filing deadline cannot be complied with, substantially or otherwise, by filing late - even by one day").

In sum, Petitioner is not entitled to equitable tolling. The Petition is untimely.[5]


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.

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