United States District Court, C.D. California
VALERIE BAKER FAIRBANK, Senior District Judge.
Proceeding pro se, California state prisoner Donald Tinsley ("petitioner") brought this action for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Magistrate Judge has issued a Report and Recommendation ("R&R") recommending that the petition be dismissed as untimely, and petitioner filed objections. For reasons that follow, the Court will overrule petitioner's objections, adopt the R&R as supplemented, dismiss the habeas petition with prejudice as untimely, and deny a certificate of appealability ("COA"). The Court will enter final judgment in favor of respondent and against petitioner by separate document.
In 1995 a San Joaquin County Superior Court jury found petitioner guilty of first-degree murder, second-degree robbery, assault with a deadly weapon, and two counts of kidnapping, and that court sentenced him to a term of 68 years to life in state prison. On direct appeal, the California Court of Appeal issued an unpublished decision affirming the convictions and sentence, see People v. Tinsley, No. C022618 (Cal. App.3d Dist. Aug. 27, 1997), and the California Supreme Court issued a summary silent denial of petitioner's ensuing petition for review, No. S064802 (Cal. Dec. 10, 1997). Petitioner filed original habeas petitions at all three levels of the state courts - Superior Court (filed June 5, 2013 and denied July 24, 2013), the California Court of Appeal (filed February 22, 2011 and denied February 24, 2011), and the California Supreme Court (filed May 12, 2011 and denied October 12, 2011). Given the Report's correct determination that the instant federal habeas petition is untimely, the nature of petitioner's claims and arguments in this petition ( see R&R at 4-5) are immaterial.
WHEN DID PETITIONER'S FEDERAL HABEAS CLAIM ACCRUE?
As the Magistrate notes, AEDPA provides that the one-year limitations period on a federal habeas claim starts running the day after the conviction becomes final "by the conclusion of direct review or the expiration of the time for seeking such review", 28 U.S.C. § 2244(d)(1), unless the petitioner shows that there was some impediment to his timely filing which the government created in violation of the U.S. Constitution or other lesser federal laws (statutes), § 2244(d)(1)(B); or his claim is based on some constitutional right which the U.S. Supreme Court newly recognized and which has been made retroactively applicable to cases on collateral review, § 2244(d)©; or the factual predicate of the claim or claims could not have been discovered through the exercise of due diligence any earlier, § 2244(d)(1)(D). Petitioner has not purported to show that he is entitled to a later claim-accrual date under§ 2244(d)(1)(B) (external impediment created by the government).
Attempting to show that he is entitled to a later accrual date under 28 U.S.C. § 2244(d)(1)©, Petitioner does contend that his claim did not accrue until the U.S. Supreme Court issued Martinez v. Ryan , 566 U.S. 1, ___, 132 S.Ct. 1309, 1320 (2012) (" Martinez "). In Martinez, the Supreme Court held that
[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. The Supreme Court's issuance of Martinez will entitle petitioner to a later claim-accrual date only if Martinez "newly recognized" a federal constitutional right and Martinez has been "made retroactively applicable to cases on collateral review", 28 U.S.C. § 2244(d)(1)©.
The Court must correct an error in the Report's interpretation of § 2244(d)(1)©. The Report asserts, without citation of authority, that "§ 2244(d)(1)© applies only when the Supreme Court has made a new constitutional right retroactive to cases on collateral review, ...." R&R at 6-7. The Court respectfully disagrees and concludes that § 2244(d)(1)© allows lower federal courts, not just the U.S. Supreme Court, to determine whether a new constitutional holding should be applied retroactively to cases pending on collateral review.
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, 533 U.S. 656 (2001), the Court considered whether a new rule announced in was "made retroactive to cases on collateral review by the Supreme Court" as required by § 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 retroactively applicable to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 662, 121 ...