United States District Court, C.D. California
January 23, 2015
BILLY DRIVER JR., Petitioner,
JERRY BROWN, Governor, Respondent
Billy Driver, Jr, Petitioner, Pro Se, Lancaster, CA.
Jerry Brown, Gov, Respondent: Michael G Lagrama, LEAD ATTORNEY, CAAG - Office of Attorney General, San Francisco, CA; Charles Chung, Kim Aarons, CAAG - Attorney General Office, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ALICIA G. ROSENBERG, United States Magistrate Judge.
The court submits this Report and Recommendation to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the magistrate judge recommends that Respondent's motion to dismiss be granted and the Petition for Writ of Habeas Corpus be denied.
SUMMARY OF PROCEEDINGS
According to the Petition, in June 1986 Petitioner pled guilty to robbery, possession of a firearm, and possession of controlled substances. Pursuant to a plea agreement, he was sentenced to 50 years in prison. (Petition at 2.) Petitioner did not appeal. (Id.)
On September 17, 2012, Petitioner signed a habeas petition addressed to the Los Angeles County Superior Court. (Dkt. No. 1-4 at 18.) On December 20, 2012, Petitioner filed a petition for writ of mandate in the California Court of Appeal, which was denied on December 21, 2012. (Dkt. No. 1-2 at 20.) On April 24, 2013, Petitioner filed a petition for writ of mandate in the California Supreme Court, which transferred it to the Court of Appeal on April 29, 2013, and which was denied as " repetitive" on May 9, 2013. (Id. at 19.) On September 11, 2013, Petitioner filed a habeas petition in the Los Angeles County Superior Court. On November 5, 2013, the court ordered an " informal letter response" from the Los Angeles Attorney General's office. (Id. at 35.) On September 20, 2013, Petitioner filed a habeas petition in the Court of Appeal, which was denied on October 25, 2013. (Id. at 17.) On December 6, 2013, Petitioner filed a habeas petition in the California Supreme Court, which was denied on February 26, 2014. Dkt. No. 1-2 at 5; Dkt. No. 1 at 16.)
On March 5, 2014, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this court. (Petition, back of envelope.) He raises three grounds. (Id. at 5-6.)
On June 13, 2014, Respondent filed a motion to dismiss (" MTD") based on expiration of the statute of limitations. On July 11, 2014, Petitioner filed an opposition. On July 17, 2014, Respondent filed a reply.
STATUTE OF LIMITATIONS
In Ground One Petitioner argues that based on his understanding of the plea agreement, he should have been released from prison in December 2010. Petition at 5.) He alleges that in exchange for a guilty plea he would serve 25 years in prison (50 years at half time). (Petition, Memo at 1.)
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). Therefore, the court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The AEDPA has a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitation period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or a date set in § 2244(d)(1)(B)-(D). The only relevant provision here is subdivision (d)(1)(D), which is addressed below.
A. Date of Discovery -- 28 U.S.C. § 2244(d)(1)(D)
The statute of limitations begins to run on " the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).
Petitioner contends he should have been released from prison on December 29, 2010. (Petition, Memo at 2.) Therefore, Petitioner was or should have been aware of the factual predicate of his claim no later than the next day, December 30, 2010, because he was not released. See Murphy v. Espinoza, 401 F.Supp.2d 1048, 1052 (C.D. Cal. 2005) (statute of limitations begins to run after date petitioner claimed his sentence should have expired); Jimenez v. Hartley, *13 (C.D. Cal. Dec. 6, 2010) (petitioner knew or should have known factual predicate when date passed and he was not released). The statute of limitations expired one year later on December 31, 2011. Barring tolling, the petition is time-barred.
B. Statutory Tolling
Petitioner is not entitled to statutory tolling because his first collateral attack was filed on September 17, 2012 (Dkt. No. 1-4 at 4-12), after the statute of limitations had already expired. A habeas petition filed after the limitations period expired does not restart the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Petitioner claims that he is entitled to statutory tolling based on a state habeas petition that he filed in December 2010 " all the way up to the state supreme court." (Opposition at 6.) Petitioner claims he then filed in " federal district court" and the petition " ended up in the United States Court of Appeals for the 9th Circuit and was finally concluded in the 9th Circuit on March, 2013." (Id.)
Petitioner is incorrect. On March 12, 2013, the Ninth Circuit affirmed the district court's dismissal of a civil rights complaint under 42 U.S.C. § 1983 alleging excessive force, denial of access to the courts and deliberate indifference claims. Driver v. Kelso, 514 F.App'x 662 (9th Cir. 2013) (affirming Driver v. Kelso, (E.D. Cal. Aug. 9, 2012)). That case did not involve a claim of breach of a plea agreement. This court has not located any prior habeas petition in this court challenging his release date.
A review of the California appellate courts case information website indicates that Petitioner's first state petition before the California Supreme Court was filed on April 24, 2013 (Case No. S210215) and Petitioner's first state petition before the California Court of Appeal was filed on December 21, 2012 (Case No. B245790). The California Court of Appeal referenced Trial Court Case No. A912748, which is the state habeas petition filed in the superior court on September 17, 2012. (Dkt. No. 1-4 at 4.) The court has not located any earlier state habeas petition. Although Petitioner claims to have filed a state petition in December 2010 on " his post-sentencing and parole denial, " Petitioner does not specify the court in which he allegedly filed the petition and does not provide any case information.
C. Equitable Tolling
" [T]he timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Holland v. Florida, 130 S.Ct. 2549, 2554, 177 L.Ed.2d 130 (2010). " [A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). " The diligence required for equitable tolling purposes is " reasonable diligence, " not " maximum feasible diligence." Id. at 2565 (citations and quotation marks omitted). The extraordinary circumstances must have been the cause of an untimely filing. Pace, 544 U.S. at 418. " [E]quitable tolling is available for this reason only when '" extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time" ' and '" the extraordinary circumstances" were the cause of [the prisoner's] untimeliness.'" Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citations omitted, emphasis in original).
Petitioner argues he is entitled to equitable tolling based on " some kind of wrongful conduct on the part of the opposing party." Petitioner cites to his response to an order to show cause filed on April 11, 2014. (Opposition at 7; Dkt. No. 10 (" Response").) However, his response does not indicate any wrongful conduct that prevented him from filing a timely habeas petition.
Petitioner's response contended that he " suffers from a serious mental disorder that causes him to experience auditory h[a]llucinations and visionary h[a]llucinations with psychotic features of schizophrenia" and attached various documents. (Response at 1, Exs. A & B.) Exs. A and B involve medications Petitioner was apparently taking in March and May of 2013. Nothing in these records indicates that Petitioner's mental condition prevented him from filing court documents. As previously outlined in the Summary of Proceedings, Petitioner filed a petition for writ of mandate in the California Court of Appeal on December 20, 2012. He filed a petition for writ of mandate in the California Supreme Court on April 24, 2013. He filed a habeas petition in the Los Angeles County Superior Court on September 11, 2013.
On April 18, 2011, Petitioner filed a petition for writ of habeas corpus in Driver v. Walker, Case No. CV 11-1055-MCE-JFM (E.D. Cal.). During the pendency of the case, Petitioner filed documents on May 4, 2011 (Dkt. No. 6), May 16, 2011 (Dkt. No. 8), July 1, 2011 (Dkt. No. 10), July 29, 2011 (Dkt. No. 12), September 30, 2011 (Dkt. No. 13), October 25, 2011 (Dkt. No. 18), November 22, 2011 (Dkt. No. 22), December 14, 2011 (Dkt. No. 24), March 13, 2012 (Dkt. Nos. 28-29), and April 13, 2012 (Dkt. Nos. 32-34).
On September 9, 2011, Petitioner filed a civil rights complaint in Driver v. Kelso, Case No. CV 11-2397-EFB (E.D. Cal.). During the pendency of the case, Petitioner filed documents on September 16, 2011 (Dkt. Nos. 4-7), October 4, 2011 (Dkt. No. 10), November 30, 2011 (Dkt. No. 12), February 23, 2012 (Dkt. No. 13), March 1, 2012 (Dkt. No. 15), June 20, 2012 (Dkt. No. 16), and September 28, 2012 (Dkt. No. 23).
On November 1, 2011, Petitioner file a civil rights complaint in Driver v. Lopes, Case No. CV 11-2877-KJN (E.D. Cal.). During the pendency of the case, Petitioner filed documents on November 8, 2011 (Dkt. No. 5), November 30, 2011 (Dkt. No. 6), December 8, 2011 (Dkt. No. 7), June 20, 2012 (Dkt. No. 11), and August 3, 2012 (Dkt. No. 13).
On December 1, 2011, Petitioner filed a civil rights complaint in Driver v. Martinez, Case No. CV 11-5793-SI (N.D. Cal.). During the pendency of the case, Petitioner filed documents on December 20, 2011 (Dkt. No. 4), April 11, 2012 (Dkt. No. 8), December 6, 2012 (Dkt. No. 18), February 27, 2013 (Dkt. No. 24), March 7, 2013 (Dkt. No. 26), May 22, 2013 (Dkt. No. 32), and May 24, 2013 (Dkt. No. 33).
Petitioner has not met either prong of the two-part test for equitable tolling based on mental impairment. Petitioner has failed to demonstrate that " extraordinary circumstances" were the cause of his untimeliness. Bills, 628 F.3d at 1097.
D. Different Discovery Date
Petitioner argues, alternatively, that the documents attached to his Petition indicate that he was to be released in September 2013. (Opposition at 4.) However, the documents do not support a different discovery date.
Petitioner argues that, on March 5, 2013, a licensed clinical social worker (Feldman) " scheduled" Petitioner for parole in September 2013 and yet he was not paroled. (Petition, Memo at 2 (citing Exh. D).) According to Exhibit D, on February 26, 2013, the prison received an accommodation request (Log No. HC-13046/90) from Petitioner pursuant to the Americans with Disabilities Act. Petitioner stated that he was entitled to half time credit, was suffering from chronic depression and severe mood swings, and the CDCR was " subjecting me to false imprisonment." He noted that the original release date should have been on November 1, 2010. (Dkt. No. 1-1 at 4.) On March 5, 2013, Feldman found that Petitioner exhibited various symptoms of mental impairment, that he was not functioning " adequately" at the CCCMS level and recommended that he be placed at the EOP level. (Id. at 5.) Based on these findings, Petitioner's request to participate at the EOP level was granted. (Id.) Contrary to Petitioner's argument, Feldman did not mention parole.
On October 15, 2013, Petitioner filed a health care appeal (Log No. HC13047358). He stated that he should be placed in EOP and that he should be " released with SSI benefits by Oct/2013." (Dkt. No. 1-1 at 12.) After being denied at the first level ( id. at 9), Petitioner's appeal was partially granted at the second level on December 2, 2013. The IDTT had previously found that Petitioner was " appropriate for CCCMS level of care" on October 3, 2013. With respect to parole, the document stated: " You asked when you will be paroling and you asked when 'an SSI rep' would come interview you. You are encouraged to ask your CCI when you exact parole date is, however it is greater than 90 days away and therefore, it is anticipated that you will meet with a TCMP social worker within 90 days of your earliest possible release date." (Id. at 10 (emphasis added).)
On January 24, 2014, Petitioner's appeal was denied at the Director's level. Health Care Services (" HCS") repeated that CCCMS was the appropriate level for Petitioner's mental health care in prison and stated that Petitioner's request to be released with SSI benefits " is beyond the scope of health care appeals process; parole issues are a custody matter and should be addressed through appropriate custody channels." (Id. at 6.)
For the reasons discussed above, it is recommended that the district court issue an order (1) accepting this Report's findings and recommendation; (2) granting Respondent's motion to dismiss; and (3) directing that judgment be entered denying the petition with prejudice.