United States District Court, N.D. California, Oakland Division
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
PHYLLIS J. HAMILTON, District Judge.
This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss on the ground that the petition is barred by the statute of limitations. Petitioner has not filed an opposition but did file a motion for a certificate of appealability. The court will still look to the merits of the motion to dismiss and for the reasons that follow, the motion will be granted.
Statute of Limitations
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 non capital 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 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 may start running from "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A).
Petitioner was sentenced to twenty years in prison on November 4, 2010, after he pled no contest to assault with a deadly weapon and admitted certain enhancements and a prior strike. Petition at 78-81. Petitioner did not directly appeal and the time to do so expired on January 3, 2011, 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). Thus, petitioner's one-year limitations period began to run on January 4, 2011, and expired on January 3, 2012. See 28 U.S.C. § 2244(d)(1). The instant federal petition filed on July 29, 2014, is untimely absent tolling.
On August 11, 2013, petitioner filed a habeas petition in Santa Cruz County Superior Court, that was denied on November 15, 2013. Motion to Dismiss ("MTD"), Ex. 1, 2. On January 8, 2014, he filed a habeas petition in the California Court of Appeal that was denied on February 11, 2014. MTD, Ex. 3. On March 28, 2014, he filed a habeas petition in the California Supreme Court that was denied on June 11, 2014. MTD. Ex. 4, 5. This federal petition was filed on July 29, 2014.
All of petitioner's state habeas petitions were filed more than a year and a half after the expiration of the statute of limitations. Petitioner will not receive statutory tolling for any of these petitions as they were filed after the expiration of the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed). Thus, this petition is untimely.
As noted above, petitioner did not file an opposition to the motion to dismiss. In his petition he states that any delay in seeking relief was caused by his lack of knowledge of the law, placement in the security housing unit, the discovery of new evidence, and the decisions by the Supreme Court in Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012).
A pro se petitioner's lack of legal sophistication alone is not an extraordinary circumstance to justify equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Petitioner provides no specific information regarding his time in the security housing unit and how it prevented him from timely filing a petition. Nor does he adequately describe the new evidence that was discovered and how it would affect the statute of limitations.
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).
It appears that petitioner argues 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 counsel failed to investigate, failed to file a discovery motion, and failed to collect any physical evidence or medical records. He also argues that counsel was ineffective at sentencing.
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 ...