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Kennedy v. Warden

United States District Court, E.D. California

April 16, 2014

JERRY NOBLE KENNEDY, Petitioner,
v.
WARDEN, San Quentin State Prison, Respondent.

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Petitioner is a state prisoner under sentence of death. Based on the four-month delay in appointing federal habeas counsel, petitioner moves for equitable tolling of the one-year statute of limitations for filing his federal habeas corpus petition. (ECF No. 14.) For the reasons set forth below, this court finds petitioner should be entitled to equitable tolling and recommends granting petitioner's motion.

BACKGROUND

In 1993, a jury convicted petitioner of first degree murder and robbery and sentenced him to death. People v. Kennedy , 36 Cal.4th 595, 602 (2005). On July 25, 2005, the California Supreme Court affirmed petitioner's conviction and sentence on appeal. Id . On October 12, 2005, the California Supreme Court denied a petition for rehearing. On April 17, 2006, the United States Supreme Court denied petitioner's certiorari petition. Kennedy v. California, 547 U.S. 1076.

On June 29, 2005, during the pendency of petitioner's state appeal, the California Supreme Court appointed Judd Iversen as habeas/clemency counsel for petitioner and, as reflected in a later order amending the June 29 order, stated that a state habeas petition would be presumed timely if filed within 36 months. (See Docket for People v. Kennedy, No. S037195 (ECF No. 19-2), entries of June 29, 2005 and Dec. 16, 2005.[1]) On November 4, 2005, petitioner filed a nine-page petition for writ of habeas corpus with the California Supreme Court. (Id.) When that petition was submitted, the Clerk of the California Supreme Court filed it, docketed it as "Petition for writ of habeas corpus, " and opened a new case, No. S138625. (In re Jerry Noble Kennedy, No. S138625.[2]) On June 30, 2008, petitioner filed a 589-page "Amended petition for writ of habeas corpus" in case no. S138625. (Id.) The state filed a 280-page informal response in February 2009 and petitioner filed a 188-page reply in June 2010. The California Supreme Court denied that petition summarily on September 18, 2013. Id . The court's one-paragraph order states that each claim was denied on the merits and several were also denied on procedural grounds. None were denied as untimely.

On October 1, 2013, petitioner initiated these federal proceedings by filing motions to appoint counsel and enter a stay of execution. (ECF No. 1.) On October 4, the court granted the motion to appoint counsel and referred the case to the Eastern District's Selection Board for a recommendation of counsel. (ECF No. 8.) Over four months later, on February 14, 2014, based on the recommendation of the Selection Board, the court appointed Mr. Ellis and Mr. Clough to represent petitioner in these proceedings. (ECF No. 9.) On March 4, petitioner filed the present motion for equitable tolling. (ECF No. 14.) Respondent opposes the motion. (ECF No. 19.)

DISCUSSION

Petitioner seeks a pre-petition determination that he is entitled to an additional four months to file his federal petition based on the more than four-month period between the date he filed the motion for appointment of counsel and the date the court appointed counsel. Petitioner's argument is premised on the assumption that the statute of limitations was statutorily tolled during the pendency of petitioner's state habeas proceeding. Respondent objects to this premise and objects as well to any equitable tolling.

Petitioner's direct review proceedings were final on April 17, 2006, the date the United States Supreme Court denied certiorari. 28 U.S.C. § 2244(d)(1)(A); see Holland v. Florida , 560 U.S. 631, 635 (2010). On the next day, April 18, 2006, the one-year statute of limitations for filing a federal habeas corpus petition, created in 1996 by the Anti-terrorism and Effective Death Penalty Act (the "AEDPA"), commenced. See id. Absent tolling, petitioner's federal habeas corpus petition was due April 17, 2007.

I. Statutory Tolling

AEDPA's statute of limitations may be tolled "for 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." 28 U.S.C. § 2244(d)(2). Petitioner's motion for equitable tolling assumes he is entitled to this statutory tolling from the day he filed his first state habeas petition on November 4, 2005, through the day the California Supreme Court denied him habeas relief on September 18, 2013. Based on this assumption, the statute of limitations for petitioner's federal habeas petition will expire on September 17, 2014. Respondent argues statutory tolling is inapplicable because petitioner's initial state habeas petition was only a "shell" petition.

Respondent parses the statutory tolling requirement to make three arguments: (1) the first state petition was not "properly filed;" (2) the first state petition was not an "application for post-conviction or other collateral relief;" and (3) the first state petition was not "pending." None of respondent's arguments hold up under scrutiny.

A. Was the first state petition properly filed?

Respondent asserts that the "properly filed" requirement includes compliance with the state's rules governing filings, including those prescribing the form of the document. According to respondent, the "form" of petitioner's initial habeas petition was improper because it did not comply with California rules that require a habeas petition to "articulate the legal theory and operative facts for each claim for relief." (ECF No. 19 at 24-25; see Cal. R. Ct. 8.384 & form MC-275 (copy provided at ECF No. 19-1).)

In Artuz v. Bennett , 531 U.S. 4 (2000), the Supreme Court examined the definition of "properly filed" for purposes of statutory tolling under section 2244(d)(2). The Court first looked to the definition of "filed:" "an application is filed'... when it is delivered to, and accepted by, the appropriate court officer for placement into the official record." 531 U.S. at 8. The Court went on,

an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and ...

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