United States District Court, Central District of California, Eastern Division
November 6, 2014
PAUL MURRAY AYDELOTT, Petitioner,
R.T.C. GROUNDS, Warden, Respondents
Paul Murray Ayedelott, Petitioner, Pro se, Tehachapi, CA.
For RTC Grounds, Respondent: Angela M Borzachillo, CAAG - Office of Attorney General, California Department of Justice, San Diego, CA.
AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
STEPHEN J. HILLMAN, UNITED STATES MAGISTRATE JUDGE.
This Amended Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons stated below, the First Amended Petition for a Writ of Habeas Corpus should be denied and this action should be dismissed.
Petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his 2012 conviction and sentence in California Superior Court, Riverside County (Case No. SWF121526), see respondent's Notice of Lodgment [" Lodgment" ] Nos. 1-5.
On July 21, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (" Petition") herein. Pursuant to the Court's July 22, 2014 Minute Order, petitioner filed a First Amended Petition for Writ of Habeas Corpus by a Person in State Custody (" First Amended Petition") on August 4, 2014. As best the Court can glean from petitioner's allegations, the First Amended Petition alleges the following claims: (1) Petitioner was given wrong legal advice by the arresting officer concerning the admissibility of a polygraph; and (2) Petitioner suffered a prior serious or violent felony conviction for threatening to poke someone with a needle stating that he had HIV or AID, which he does not have. (See First Amended Petition at 5-6).
Respondent filed an Answer to the First Amended Petition on September 2, 2014. Respondent then filed a Return and Motion to Dismiss the First Amended Petition (" Motion to Dismiss") on September 10, 2014. In the Motion to Dismiss, respondent contends that the First Amended Petition should be dismissed because it is barred by the one-year statute of limitations. (See Motion to Dismiss at 2-7). Respondent alternatively contends that the First Amended Petition should be dismissed because the claims alleged in the First Amended Petition are not cognizable on federal habeas review. (See Motion to Dismiss at 7-9).
Petitioner did not file an Opposition to the Motion to Dismiss, or request an extension of time to do so.
Thus, this matter now is ready for decision.
II. PROCEDURAL HISTORY
In a Felony Complaint issued in the Riverside County Superior Court on June 11, 2012, petitioner was charged with one count of possession of a controlled substance (methamphetamine), with the special allegations that petitioner suffered two prior serious or violent felony convictions and one prior serious felony conviction. (See Lodgment No. 2). On June 11, 2012, petitioner plead guilty to the charge and admitted one prior serious or violent felony conviction allegation. Pursuant to the plea agreement, the trial court sentenced him to a total prison term of 5 years, and dismissed the second prior serious or violent felony conviction allegation. (See Lodgment Nos. 2 through 5).
Petitioner did not appeal his conviction to the California Court of Appeal.
On January 8, 2014, petitioner filed a petition for writ of habeas corpus with the Riverside County Superior Court. (See Lodgment No. 6). On January 14, 2014, the Superior Court denied that habeas petition, stating: " The petition is denied because the petition fails to state a prima facie factual case supporting the petitioner's release. (Cal. Rules of Court, rule 4.551(c).) The petition makes assertions regarding the applicable law that are contrary to established California case decisions. (See Lodgment No. 7).
On March 26, 2014, petitioner filed a second habeas petition with the Riverside County Superior Court. (See Lodgment No. 8). On April 29, 2014, the Superior Court denied that habeas petition for the same reasons it denied petitioner's prior habeas petition. (See Lodgment No. 9).
On March 27, 2014, petitioner filed a habeas petition with the California Court of Appeal. (See Lodgment No. 10). On April 21, 2014, the California Court of Appeal summarily denied that habeas petition without citation of authority. (See Lodgment No. 11).
On April 23, 2014, petitioner filed a habeas petition with the California Supreme Court, wherein he alleged inter alia the same claim as the first claim alleged in the First Amended Petition herein. (See Lodgment No. 12). Petitioner supplemented that habeas petition with a letter. (See Lodgment No. 13). On July 9, 2014, the California Supreme Court summarily denied that habeas petition without citation of authority. (See Petition, Exhibit; Lodgment No. 14).
The Petition was signed on July 11, 2014, lodged on July 16, 2014, and filed on July 21, 2014.
A. Absent grounds to either delay the running of or equitably toll the statute of limitations, the Petition is untimely.
Federal habeas corpus relief is governed by statute and codified in Title 28, United States Code at Sections 2241-2255. In an attempt to " curb delays, to prevent 'retrials' on federal habeas, and to give effect to state convictions to the extent possible under law, " Congress, as part of the Anti-terrorism and Effective Death Penalty Act of 1996, revised several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). One such revision amended 28 U.S.C. § 2244 to include a one-year statute of limitation for state prisoners seeking federal habeas relief.
A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, must seek federal habeas relief " within one year of the date his process of direct review came to an end." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc).
Because petitioner entered a guilty plea and was sentenced pursuant to a plea agreement, California law required that he obtain a Certificate of Probable Cause in order to appeal his conviction and sentence within sixty days. See Cal. R. Ct. 31(d); Cal. Penal Code § 1237.5. Since petitioner did not file a Certificate of Probable Cause or a Notice of Appeal, his conviction became final on August 10, 2012, sixty days after petitioner's sentencing. Thus, the statute of limitations commenced to run on August 10, 2012. Absent statutory or equitable tolling, petitioner had until August 12, 2013 (a Monday) to timely seek federal habeas relief.
Petitioner's state habeas petitions were filed after the one-year statute of limitations expired. (See Lodgment Nos. 6, 8, 10 and 12). Thus, petitioner's state habeas petitions did not statutorily toll the limitations period. See 28 U.S.C. § 2244(d)(2); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (28 U.S.C. § 2244(d) " does not permit the reinitiation of the limitations period that has ended before the state petition was filed."), cert. denied, 540 U.S. 924, 124 S.Ct. 328, 157 L.Ed.2d 224 (2003).
Petitioner did not file the Petition until July 29, 2014, almost one year after the statute of limitations expired. Therefore, the Petition (and First Amended Petition) are untimely absent grounds for statutory and/or equitable tolling.
2. Petitioner has not alleged grounds for either delaying or equitably tolling the statute of limitations.
Under 28 U.S.C. § 2244(d), the statute of limitations begins to run the later of four possible dates. 28 U.S.C. § 2244(d)(1)(A)-(D). Petitioner has not alleged the applicability of any of the statutory circumstances that would delay the running of the statute of limitations.
The United States Supreme Court has recognized the availability of equitable tolling to the one-year statute of limitations in " extraordinary circumstances, " such as those involving " serious instances of attorney misconduct." Holland v. Florida, 560 U.S. 631, 649-52, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).
The Ninth Circuit has recognized the availability of equitable tolling to the oneyear statute of limitations in situations where " extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time."
Beeler, supra, 128 F.3d at 1289 (9th Cir. 1997) (emphasis added) (citations omitted). The words " extraordinary" and " impossible" suggest the limited availability of this doctrine. To date, the Ninth Circuit has found very few circumstances which warrant equitable tolling. The lack of precedent finding circumstances worthy of equitable tolling suggests not only the scarce applicability of the doctrine, but also that the circumstances must truly rise to the occasion of being " extraordinary" and petitioner must be able to demonstrate that filing a timely petition was not possible.
Because petitioner has not shown he is entitled to statutory or equitable tolling, the Court finds that the Petition (and First Amended Petition) are untimely and therefore should be dismissed.
For the foregoing reasons, IT IS RECOMMENDED that the district court issue an Order: (1) approving and adopting this Amended Report and Recommendation; and (2) directing that Judgment be entered dismissing the action with prejudice.