United States District Court, E.D. California
MARCUS X. McCAULEY, Petitioner,
RICK HILL, Respondent.
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's January 6, 2014, motion to dismiss on the grounds that this action is barred by the statute of limitations. Petitioner has filed an opposition based on statutory and equitable tolling, to which respondent has filed a reply. After reviewing the papers, the court now issues the following order.
Petitioner's claims are: (1) that his prior "misdemeanor" conviction in 1990 for assault does not constitute a serious or violent felony under Cal. Penal Code §§ 245(a)(1) and 12022.7(a) and was therefore not properly a strike within the meaning of Cal. Penal Code §§ 667(d)(1), 1170.12(d) and 1192.7(c); (2) that his trial counsel rendered ineffective assistance by failing to adequately prepare or investigate to establish that petitioner's prior 1990 "misdemeanor" conviction was not a serious felony; and (3) that his appellate counsel was ineffective in failing to raise the claim that the 1990 "misdemeanor" conviction was not a serious felony.
Specifically, petitioner claims that he pled guilty to a misdemeanor charge of assault in 1990, not a felony, and thus there was no evidence presented in 2009 to support the charge there under Cal. Penal Code § 12022.7(a) that he personally inflicted great bodily injury on the victim.
The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(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.
Petitioner was convicted on June 17, 2009, of conspiring to sell cocaine base and selling cocaine base. (Resp't's Lod. Doc. 1.) On July 31, 2009, petitioner was sentenced to a determinate prison term of fourteen years. Id . Petitioner filed a direct appeal which was denied by the Third District Court of Appeal on July 19, 2011. (Resp't's Lod. Doc. 2). Petitioner sought review in the California Supreme Court, but was denied on September 21, 2011. (Resp't's Lod. Docs. 3, 4). Petitioner's first state habeas petition was filed in Sacramento County Superior Court on December 14, 2012 (Resp't's Lod. Doc. 5) and denied on February 1, 2013 (Resp't's Lod. Doc. 6), in a reasoned decision on the merits. The second petition was filed in the Third District Court of Appeal on April 17, 2013 (Resp't's Lod. Doc. 7) and denied in a postcard denial on May 9, 2013 (Resp't's Lod. Doc. 8). The third and final state court habeas petition was filed in the California Supreme Court on July 10, 2013 (Resp't's Lod. Doc. 9) and received a postcard denial on September 18, 2013 (Resp't's Lod. Doc. 10). There is no dispute that petitioner's conviction became final for AEDPA purposes on December 20, 2011. Petitioner had one year, that is, until December 20, 2012, to file a timely federal petition, absent applicable tolling. The instant action, filed September 30, 2013,  is not timely unless petitioner is entitled to statutory or equitable tolling. Petitioner opposes the motion, arguing that he is entitled to a later start date of the limitations period based on a state created impediment, that statutory and equitable tolling apply, and that he is actually innocent.
I. Delay in Commencement of Limitations Period Due to State Created Impediment
In his opposition, petitioner contends that he was prevented from obtaining and reviewing records from his 1990 assault conviction, which he sought from his counsel, Richard Doctoroff, since the inception of the post-conviction appeal process. (ECF No. 12 at 3.) He also claims that the Sacramento Police Department, Sacramento County Superior Court and court reporter Kathy Ennis were impediments because they would not provide transcripts from his 1990 prior strike conviction, despite numerous requests. (Id. at 3-6.)
Before commencing a discussion of the AEDPA statute of limitations argument, the focus of which revolves about petitioner's argument that he did not have sufficient records to file a timely petition, it is necessary to briefly discuss the documents petitioner does not have or did not get (allegedly) in time to file the appropriate federal petition. The truth of whether the documents would have made any difference, or indeed, whether they directly contradict petitioner's assertions, are not directly at issue in this limitations motion to dismiss. However, lest the reader think that the "missing" or "belatedly acquired" documents would have made a dispositive difference, almost, but not all, indications are to the contrary.
It is true that we do not have transcripts of the 1990 change of plea or sentencing hearings. These would have been the most important documents about the conviction status. However, the sentencing minutes are available, and they indicate that petitioner pled to a felony assault and an enhancement of use of force likely to cause great bodily injury. Cal. Penal Code §§ 245(a)(1), 12022.7 (an enhancement that can only be used if the underlying assault is a felony). ECF 1: 92. The probation report apparently got it wrong in initially having stated that petitioner plead to a battery charge, Cal. Penal Code § 243(d) with the § 245(a)(1) charge dismissed. ECF 1: 39. However, it also indicated a "low term" recommendation of 2 years state prison-a felony. The CLETS report (rap) sheet, a report once removed from actual court records, although difficult to decipher, and giving a date in 1991, is the one document in petitioner's favor which indicates a plea to §245 (a)(1) - a misdemeanor. ECF 1: 58. The complaints/information related to the 1990 conviction, as well as the preliminary examination, although not indicative of the actual plea, were pled/processed as felonies. Documents related to the plea at issue here (2009), when relevant at all, relate that petitioner pled to a felony in 1990. See ECF 1:78-83-84. Petitioner contested the 1990 conviction in state court habeas petitions filed in late 2012 and first decided in 2013, not on the basis that he had not actually pled to a felony, but rather on the basis that the evidence did not support the plea. ECF 1: 132-133. With this background, the court turns to the AEDPA limitations motion.
Under 28 U.S.C. § 2244(d)(1)(B), the statute of limitations may commence from 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." The Ninth Circuit Court of Appeals has determined that this alternate start date applies when the petitioner "show[s] a causal connection between the unlawful impediment and his failure to file a timely habeas petition." See Bryant v. Arizona Atty. Gen. , 499 F.3d 1056, 1060 (9th Cir.2007); see also Gaston v. Palmer , 417 F.3d 1030, 1034-35 (9th Cir. 2005), amended by 447 F.3d 1165 (9th Cir. 2006).
In the instant case, although the records sought by petitioner may have related to the claims in this petition (even adversely), i.e., that his prior conviction in 1990 for assault does not constitute a serious or violent felony because he pled to a misdemeanor, and he did not personally inflict great bodily injury, and therefore it was not properly a strike, and ineffective assistance of trial and appellate counsel on this basis, it does not appear that petitioner required the state court records from his prior 1990 conviction in order to raise these claims. Petitioner's lack of access to his 1990 preliminary hearing and sentencing transcripts, and police reports did not prevent him from filing state habeas corpus petitions challenging his convictions. In fact, petitioner was able to file a total of three separate state habeas petitions without ever having obtained the sentencing transcript and ...