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Davis v. Biter

United States District Court, Central District of California

January 8, 2015

Derrick Lewis Davis
v.
Mark D. Biter

Honorable Kenly Kiya Kato, United States Magistrate Judge

(IN CHAMBERS) ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE AND DIRECTING PETITIONER TO FILE RESPONSE

On April 23, 2014, Derrick Lewis Davis ("Petitioner"), a California state prisoner proceeding pro se, constructively filed the instant Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d), with this Court. (ECF Docket No. ("dkt.") 1). In the Petition, Petitioner challenges his convictions in Los Angeles County Superior Court for: (1) two counts of inflicting corporal injury on a cohabitant, in violation of California Penal Code section 273.5(a); and (2) one count of attempting to prevent a witness from reporting a crime, in violation of California Penal Code section 136.1(b)(1). (Id.). Petitioner sets forth four grounds for habeas relief: (1) violation of Petitioner's right of cross-examination under the Confrontation Clause of the Sixth Amendment; (2) violation of Petitioner's Sixth Amendment right to self-representation; (3) ineffective assistance of appellate counsel; and (4) use of physical restraints at Petitioner's trial, in violation of Petitioner's Fifth Amendment rights ("Claim Four").[1] (Dkt. 1-1).

On November 20, 2014, Respondent filed a Motion to Dismiss, contending the Petition is untimely and that Claim Four is unexhausted. (Dkt. 24). Petitioner has failed to file a timely Opposition to the Motion.

After considering the above issues, the Court makes the following determinations.

A. Timeliness of the Petition

The instant Petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court must apply the requirements for habeas relief set forth in AEDPA when reviewing the Petition. Soto v. Ryan, 760 F.3d 947 (9th Cir. 2014) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1) ("Section 2244(d)(1)").

AEDPA's one-year limitations period commences on the date a petitioner's conviction becomes "final." 28 U.S.C. § 2244(d)(1)(A).[2] Under Section 2244(d)(1)(A), the AEDPA limitations period does not begin accruing "until both [a petitoner's] conviction and sentence bec[o]me final by the conclusion of direct review or the expiration of the time for seeking such review." Burton v. Stewart, 549 U.S. 147, 156-57, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (internal quotation marks omitted) (emphasis in original).

Here, Petitioner was originally sentenced in Los Angeles County Superior Court on January 22, 2009. See Lodgment ("lodg.") No. 1. On January 4, 2011, the Superior Court re-sentenced Petitioner and amended the judgment nunc pro tunc, pursuant to the California Court of Appeal's instructions in its reasoned decision on Petitioner's direct appeal. See Lodg. No. 5. On September 19, 2013, the Superior Court again amended Petitioner's sentence, because the California Court of Appeal found the Superior Court had not fully complied with the Court of Appeal's instructions when amending the judgment on January 4, 2011. See Lodg. No. 16.

In short, given his sentence was amended by the Superior Court twice, it is unclear exactly when Petitioner's conviction and sentence became "final" for purposes of Section 2244(d)(1)(A). If Petitioner's conviction and sentence became final after expiration of the time for seeking direct review of the Superior Court's September 19, 2013 amendment of Petitioner's sentence, the instant Petition-constructively filed less than a year later on April 23, 2014-would be timely. Moreover, looking to the September 19, 2013 amendment when assessing the Petition's timeliness would be in accord with both Ninth Circuit and district court authority. See United States v. LaFromboise, 427 F.3d 680, 683 (9th Cir. 2005) (declining to consider a conviction and sentence "final" for purposes of Section 2255's one-year statute of limitations until district court issued amended abstract of judgment correcting sentence reversed on appeal); Soeun v. Horel, No. CV 08-00195 DLB-HC, 2008 WL 4506898, at *3 (E.D. Cal. Oct. 7, 2008) (holding petitioner's conviction became final sixty days after trial court amended sentence for a second time pursuant to instructions from court of appeal); Rucker v. Clark, No. CV 07-1392 AHS-OP, 2008 WL 657950, at *3 (CD. Cal. Mar. 5, 2008) (holding petitioner's conviction became final sixty days after trial court issued amended judgment in accordance with court of appeal's opinion).

In its Motion to Dismiss, Respondent maintains Petitioner's conviction and sentence became final after expiration of the time for seeking direct review of the Superior Court's January 4, 2011 amendment of Petitioner's sentence. Mot. at 5-6. Respondent does not cite any authority establishing the January 4, 2011 amendment, rather than the September 19, 2013 amendment, as the trigger date for the AEDPA limitation period. Indeed, Respondent does not at all address the possibility that the September 19, 2013 amendment of Petitioner's sentence might be the relevant date for assessing when AEDPA's limitations period began to accrue. Given the lack of clarity on this issue, the Court denies Respondent's Motion to Dismiss, without prejudice, as to the issue of timeliness.

B. Exhaustion of Claim Four

A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam).

For a petitioner in California state custody, this generally means the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See O'Sullivan. 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding. 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California). A claim has been fairly presented if the petitioner has both "adequately described the factual basis for [the] claim" and "identified the federal legal basis for [the] claim." Gatlin. 189 F.3d at 888.

The inclusion of both exhausted and unexhausted claims in a federal habeas petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy, 455 U.S. ...


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