United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY Docket No. 12
THELTON E. HENDERSON, District Judge.
Petitioner Jerome Bordelon, a state prisoner incarcerated at Correctional Training Facility, has filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Contra Costa County Superior Court asserting the claims of (1) ineffective assistance of counsel regarding his plea of no contest and (2) invalid use of a prior plea agreement from 1980 to enhance the sentence. Docket No. 1. Respondent has filed a motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d). Petitioner filed an opposition and Respondent has filed a reply. For the reasons stated below, Respondent's motion to dismiss is GRANTED.
Petitoner pleaded no contest on March 2, 2006, to two counts of child molestation, with two prior serious felony convictions, and one prior strike. Motion to Dismiss ("MTD") at 2. Petitioner was sentenced to thirty years in state prison. Id . Petitioner did not directly appeal and the time to do so expired on May 16, 2006, sixty days after the judgment. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (because California prisoner did not appeal his conviction, process of direct review became final 60 days after conviction); Cal. Rule of Court 8.308(a).
On March 20, 2013, Petitioner filed a habeas petition in the California Supreme Court that was denied on May 15, 2013. MTD, Ex. B. Petitioner filed the instant federal petition on May 14, 2014. Docket No. 1.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or sentences must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented the petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id . § 2244(d)(2). The one-year period generally will run from "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).
Petitioner concedes that he filed his federal petition beyond the one-year limitations period provided in § 2244 (d)(1)(A), but argues that his petition is timely under § 2244(d)(1)(C).
Under § 2244(d)(1)(C), the one-year limitation period starts on 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." In interpreting an analogous provision for federal prisoners seeking to file under § 2255, the Supreme Court has held that the one-year limitation period begins to run on the date on which the Court recognized the new right being asserted, not the date on which that right was made retroactive. See Dodd v. United States, 545 U.S. 353, 357 (2005).
Petitioner argues that he is entitled to a later start date of the statute of limitations due to the Supreme Court's decision in Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012), which he contends established a new constitutional rule. Frye and Lafler concerned defense counsel's failure to communicate to defendant a formal plea offer from the prosecution regarding a plea with favorable terms and conditions and allowing that offer to lapse. Frye, at 1410; Lafler, at 1383. The Supreme Court found this constituted deficient performance. Id.
However, Petitioner's claims in this petition do not concern any failure by trial counsel to communicate a favorable plea offer, as was the situation in Frye and Lafler. Petitioner argues that trial counsel was ineffective for failing to limit sentencing enhancements regarding a 1980 case when negotiating his current plea deal.
Even assuming that Frye and Lafler were relevant to Petitioner's case, he would not be entitled to a later start date of the statute of limitations. This contention has been directly rejected by the Ninth Circuit. In Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012), the Ninth Circuit held that neither Frye nor Lafler decided a new constitutional rule but rather applied the Sixth Amendment right to effective assistance of counsel according to the test articulated in Strickland v. Washington, 466 U.S. 668, 686 (1984), and extended it to the plea-bargaining context in Hill v. Lockhart, 474 U.S. 52 (1985). "Because the Court in Frye and Lafler repeatedly noted its application of an established rule to the underlying facts, these cases did not break new ground or impose a new obligation on the State or Federal Government." Buenrostro, 697 F.3d at 1140. ...