United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Doc. No. 7
VINCE CHHABRIA, District Judge.
Petitioner Trevillion Ward has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent Gary Swarthout has filed a motion to dismiss on the ground that the petition is untimely. For the reasons stated below, the motion to dismiss is granted.
An Alameda County jury found Ward guilty of attempted premeditated murder, aggravated assault, corporal injury on a spouse and possession of a firearm by a felon for which he received a sentence of 140 years. On June 3, 2011, the California Court of Appeal modified Ward's sentence, but otherwise affirmed his convictions. Resp.'s Ex. A. On August 31, 2011, the California Supreme Court denied the petition for review. Resp.'s Ex. B.
On September 12, 2012, Ward filed a petition for a writ of habeas corpus in the Alameda Superior Court. Resp.'s Ex. C, In re Ward on Habeas Corpus, No. 160869 (Cal. Sup.Ct. Nov. 13, 2012). On November 13, 2012, the Alameda Superior Court denied the petition as untimely and, alternatively, as failing to present a prima facie case for relief. Id. On January 23, 2013, Ward filed a petition for a writ of habeas corpus in the California Court of Appeal, which was summarily denied on February 6, 2013. Resp.'s Ex. D. On April 8, 2013, Ward filed a petition for a writ of habeas corpus in the California Supreme Court, which was summarily denied on June 12, 2013. Resp.'s Ex. E. On September 12, 2013, Ward filed this federal petition for a writ of habeas corpus.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, a petitioner must file a habeas petition in federal court within one year after "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Direct review includes the ninety day period to file a petition for certiorari in the United States Supreme Court. Jimenez v. Quarterman, 555 U.S. 113, 129 (2009).
Ward's conviction became final on November 29, 2011, ninety days after August 31, 2011, when the California Supreme Court denied his petition for review. The federal limitations period expired one year later on November 29, 2012. Because Ward did not file his federal petition until September 12, 2013, 287 days after the limitations period had expired, the petition is untimely unless Ward can show that he is entitled to statutory or equitable tolling.
I. Statutory Tolling
AEDPA's one-year limitations period is tolled under § 2244(d)(2) 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.'" Dictado v. Ducharme, 244 F.3d 724, 726 (9th Cir. 2001) (quoting 28 U.S.C. § 2244 (d)(2)), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005). "Properly filed' means the petition's delivery and acceptance are in compliance with the applicable laws and rules governing filings' in that state." Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) amended on other grounds by 439 F.3d 993 (9th Cir. 2006). "When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Id. (citing Pace, 544 U.S. at 413).
The California Superior Court's dismissal of Ward's state habeas petition was the last-reasoned decision regarding Ward's petition and that is what this Court must look to. See Ylst v. Nunnemaker, 501 U.S. 797 803, 805 (1991). In its order, the California Superior Court explained that it was denying Ward's petition because, among other reasons, the petition was untimely as to all grounds asserted. Resp.'s Ex. C at 1; s ee Bonner, 425 F.3d at 1148 (addressing similar wording in superior court order and finding court denied petition as untimely). The fact that the Superior Court alternatively denied the petition on the merits does not render the petition timely and properly filed. See Carey v. Saffold, 536 U.S. 214, 225-26 (2002) (state court's alternative rulings does not make petition timely and "properly filed" under state law); Bonner, 425 F.3d at 1148-49 (same). Ward's petition is, therefore, not entitled to statutory tolling under § 2244(d)(2).
Bonner addressed a similar factual situation where a habeas petition was denied by the California Superior Court as untimely. Id. at 1146. The Ninth Circuit explained that the denial based on untimeliness meant that the petition was never properly filed for tolling purposes and, thus, it was not entitled to statutory tolling from the date the one-year federal statute began to run to the date the federal petition was filed. Id. The Ninth Circuit recognized that this was a harsh result but cited Pace, which held that "such a result- a petitioner trying in good faith to exhaust state remedies may litigate in state court for years only to find out at the end that he was never properly filed'-did not justify a different rule." Id. at 1149 (citing Pace, 544 U.S. at 416) (internal quotation marks omitted).
Ward argues that the California Superior Court incorrectly denied his petition as untimely because he filed it within the federal one-year statute of limitations. Pet'n at 3. This argument is incorrect because, as explained above, state ...