United States District Court, C.D. California
CIVIL MINUTES - GENERAL
VALERIE BAKER FAIRBANK, Senior District Judge.
PROCEEDINGS (IN CHAMBERS): ORDER (1) Overruling Petitioner's Objections; (2) Adopting Report & Recommendation; (3) Granting Respondent's Motion to Dismiss; (4) Dismiss Habeas Petition with Prejudice as Untimely; (5) Declining to Issue a Certificate of Appealability; (6) Directing Entry of Separate Judgment
Represented by counsel, California state prisoner Darold Jay Hecht ("petitioner") brought this action for habeas corpus relief pursuant to 28 U.S.C. § 2254. The respondent field a motion to dismiss the petition, and petitioner's counsel filed an opposition brief. The Honorable Margaret Nagle, United States Magistrate Judge, has issued a characteristically well-reasoned Report and Recommendation ("R&R") recommending that the habeas petition be dismissed with prejudice as untimely, and petitioner has filed objections (Doc 21). Although respondent had a right to respond to the objections, it elected not to do so. Having reviewed the habeas petition, the motion to dismiss, petitioner's brief opposing dismissal, the R&R, petitioner's objections to the R&R, and the applicable law, the Court determines that the petition is indeed untimely. Accordingly, the Court will adopt the R&R, dismiss the petition with prejudice as untimely, and deny a certificate of appealability. The Court will then direct the entry of judgment by separate document as required by Fed.R.Civ.P. 58.
A jury convicted Hecht of child sex offenses in 2009 and he was sentenced to 24 years in state prison. On direct appeal, Hecht raised only an instructional-error claim, and it does not correspond to any of the claims in the instant federal habeas petition. The California Court of Appeal affirmed the judgment in September 2010 and the California Supreme Court summarily denied his ensuing petition for review on December 1, 2010. Exactly one year later, on December 1, 2011, Hecht filed an original habeas petition in the state trial court raising claims which correspond to those in the instant federal petition. The trial court issued a reasoned written decision denying the petition on February 8, 2012. Hecht filed with the California Court of Appeal another original habeas petition asserting the same claims on March 5, 2012, and that court denied it on March 15, 2012. More than one hundred days later, on June 27, 2012, Hecht filed an original habeas petition asserting the same claims in the California Supreme Court, which issued an order on November 28, 2012 summarily denying the petition with four citations, including two citations indicating that the bases for the denial were failure to state with particularity the facts supporting relief and to includes copies of reasonably available evidence supporting the claim, and a failure to raise claims on direct appeal that could have been so raised. See R&R at 2-3 with n. 3. Hecht filed this petition 28 days later, on December 20, 2012.
First, the Magistrate is right (R&R at 5-6) that Hecht's conviction became final, for AEDPA purposes, when his time to petition the U.S. Supreme Court for certiorari elapsed ninety days after the California Supreme Court's denial of review on direct appeal on December 1, 2010, i.e., March 1, 2011. That triggered the start of AEDPA's one-year limitation period.
The Magistrate is also correct (R&R at 5) that Hecht has not shown that he is entitled to a later start date for the limitations period for any of his claims under 28 U.S.C. § 2244(d)(1)(A) through © (new constitutional right made retroactive to cases pending on collateral review, newly discovered material facts or evidence that was not available through the exercise of reasonable diligence earlier, or governmental interference that prevented him from filing his federal petition earlier). See, e.g., Chin v. Hill, 548 F.App'x 486, 487 (9th Cir. 2013) (rejecting petitioner's argument that he was entitled to a later claim-accrual date under § 2244(d)(1)(A) because his claim did not accrue until the time to petition for certiorari from the denial of his administrative appeal expired); Gabay v. Lackner, 2014 WL 29727, *3-*4 with nn. 5-6 (E.D. Cal. Jan. 3, 2014) (rejecting petitioner's argument that he was entitled to a later claim-accrual date under 28 U.S.C. § 2244(d)(1)(B) due to an external government-created impediment to his filing his federal habeas claims earlier); Lewis v. Gipson, 2014 WL 1286219, *2 (C.D. Cal. Mar. 4, 2014) ("Petitioner has made no contention that he was impeded from filing his federal petition by unconstitutional state action and thereby entitled to a later trigger date under § 2244(d)(1)(B). Moreover, petitioner has no basis for contending that he is entitled to a later trigger date under § 2244(d)(1)© because his sentencing[-]error claim is based on a constitutional right that was initially recognized by the... Supreme Court subsequent to the date his conviction became final and that has been made retroactively to cases on collateral review."), R&R adopted, 2014 WL 1291804 (C.D. Cal. Mar. 31, 2014).
Thus, by the time Hecht filed his first state habeas petition on December 1, 2011, 274 days of AEDPA's 365-day limitations period had already run, see R&R at 6.
Second, the Magistrate is right that Hecht is entitled to some statutory tolling of the AEDPA limitations period but not enough to render his petition timely. Section 2244(d)(2) suspends the AEDPA limitations period for the time during which a properly filed application for postconviction relief is pending in state court, and for reasonable intervals between a state court's denial of such an application and the petitioner's filing of another such application in the next highest state court. See R&R at 6 (citing Biggs, 339 F.3d at 1046 and Carey, 536 U.S. at 217-25); see, e.g., Luna v. Kernan, 2012 WL 1574687, *3 (E.D. Cal. May 3, 2012) ("Petitioner waited 144 days until September 28, 2004, to file the next petition in the California Court of Appeal. Petitioner is not entitled to statutory tolling for the delay in the filing.") (citing, inter alia, Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (115-day delay between state habeas filings was too long for gap tolling)).
This is called "gap tolling", see Hernandez v. Diaz, 2014 WL 1401861, *3 (C.D. Cal. Apr. 9, 2014) (citing Carey, 536 U.S. at 223, 122 S.Ct. 2134), and the federal habeas court consults state law in determining when a gap is reasonable. See Evans v. Chavis, 5446 U.S. 189, 191, 126 S.Ct. 846, 849 (2006) (state habeas petitions held untimely under state law were not "pending" for purposes of § 2244(d)(2)); Pace v. DiGuglielmo, 544 U.S. at 414, 125 S.Ct. at 1812 ("When a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)."), see, e.g., Olson v. Cash, 2014 WL 1402882, *2 (C.D. Cal. Apr. 8, 2014) (AEDPA limitations period is gap-tolled "as long as the interval between the filing of those [state-court habeas] petitions are timely under state law.") (citations omitted). Thus, the Magistrate is right (R&R at 6-7) that AEDPA automatically tolled the limitations period while petitioner's first state habeas petition was pending (December 1, 2011 through February 8, 2012, when the state trial court denied it).
After the state trial court denied petitioner's first state habeas petition raising these claims on February 8, 2012, petitioner filed an identical habeas petition in the California Court of Appeal less than one month later, on March 5, 2012. The Court also agrees with the Magistrate that under our precedents, the lapse of less than one month between the denial of the Superior Court habeas petition and petitioner's filing of the Court of Appeal habeas petition was not unreasonable, and hence AEDPA further tolled the limitations period during that period. See R&R at 7; see also, e.g., Payne v. Gipson, 2013 WL 693011, *4 (C.D. Cal. Jan. 15, 2013) ("[P]etitioner proceeded with reasonable diligence to file his second habeas petition with the Court of Appeal some six weeks after the Superior Court denied his first habeas petition."), R&R adopted, 2013 WL 693006 (C.D. Cal. Feb. 21, 2013); contrast Ramirez v. Long, 2014 WL 1325568, *4 (C.D. Cal. Mar. 31, 2014) ("The Second Trial Court Petition also was denied on its merits, and thus, Petitioner is entitled to receive statutory tolling for the time while it was pending, .... However, Petitioner is not entitled to receive statutory tolling for the 505-day gap that preceded its filing...."). Standard statutory tolling then tolled the period for another ten days until the Court of Appeal denied that petition on March 15, 2012, see id.
Next, petitioner waited more than three months before filing the identical habeas petition in the California Supreme Court on June 27, 2012. The Magistrate correctly concludes that this delay of more than three months was unreasonable without an adequate explanation from petitioner. See R&R at 9-13 (citing, inter alia, Stancle, 692 F.3d at 956 (holding that unexplained delay of 82 days was unreasonable and thus that petitioner was not entitled to AEDPA gap tolling) and Velasquez, 639 F.3d at 968); see id. at 11 ("Petitioner and his counsel do not identify a single investigative effort that was undertaken, or any additional item of evidence that was obtained, which justified delaying 103 days before filing an identical habeas petition.... * * * While they vaguely allude to a related civil lawsuit, they do not explain how actions being undertaken in that sep[arate lawsuit had generated additional evidence germane to the state habeas efforts, ....").
This conclusion is particularly appropriate given that the habeas petition filed in the California Supreme Court was identical to that filed three months earlier in the California Court of Appeal. See Perez v. Biter, 2013 WL 5890633, *4 (C.D. Cal. Oct. 31, 2013) (Gary Feess, J.) ("Petitioner is not entitled to tolling of the 102- and 97-day periods between his state habeas petitions. Petitioner's court of appeal and supreme court habeas petitions were nearly identical to his superior court petition..., and thus it is not clear why he needed additional access to the law library before reasserting the same claims in the higher courts.") (internal citations omitted) (citing Velasquez, 639 F.3d at 968). For this reason, petitioner's AEDPA limitations period resumed running on March 13, 2012 (the day after the Court of Appeal denied his habeas petition) and expired 91 days later, on June 14, 2012, which was before he filed the state Supreme Court petition. See R&R at 13.
As the Magistrate correctly notes, because petitioner filed his California Supreme Court habeas petition after the AEDPA limitation period expired, the filing of that petition could not act to "resurrect" the expired limitations period or start a new period running. See R&R at 13 (citing, inter alia, Ferguson, 321 F.3d at 823); see also, e.g., Sith v. Virga, 2014 WL 229257, *5 (E.D. Cal. Jan. 17, 2014) ("With the tolling of seven days during the pendency of petitioner's first state habeas petition..., the limitations period for him to seek federal habeas relief was extended to November 17, 2010. None of the habeas petitions filed by petitioner after that date could serve to statutorily toll the AEDPA statute of limitations which had already expired.") (citing Ferguson, 321 F.3d at 823); Gleghorn v. Campbell, 2014 WL 185591, *8 (C.D. Cal. Jan. 14, 2014) ("[H]is limitations period... expired... over ten months before Petitioner again sought state habeas relief. Petitioner cannot received interval tolling for the gap in time between the July 19, 2008 denial of his habeas petition... and the February 10, 2010 filing of another petition in the California Court of Appeal.... [Hi]s limitations period expired in the interim.") (n.12 omitted) (citing, inter alia, Jiminez, 276 F.3d at 482).
As the Magistrate reasons, petitioner is not entitled to equitable tolling for the simple reason that he has not made any attempt to establish his entitlement to such tolling. See R&R at 13 n.8. That concludes the Court's inquiry into equitable tolling, because it is the habeas petitioner who bears the burden of demonstrating that he is entitled to such tolling. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562 (2010) ("[A] petitioner is entitled to equitable tolling only if he shows that....") (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807 (2005) (internal quotation marks and alterations omitted)); Diaz v. Beard, 2014 WL 231924, *7 (S.D. ...