United States District Court, N.D. California
DONNY STEWARD, a.k.a. HARRY DARNELL HOWARD, Petitioner,
STUART SHERMAN, Respondent.
ORDER GRANTING MOTION TO DISMISS; ON PENDING MOTIONS
(DKT. NOS. 28, 41, 42, 48, 49, 50, 51, 52, 63)
William Alsup United States District Judge.
a habeas case brought pro se by a state prisoner under 28
U.S.C. 2254 challenging his state court conviction and
sentence. Respondent has filed a motion to dismiss the
petition as untimely. After initially filing a traverse (ECF
No. 33), petitioner filed a motion to amend his opposition to
the motion to dismiss (ECF No. 34), which is construed and
accepted as an amended opposition. Both have been considered.
Respondent has filed a reply brief, and petitioner filed a
response to that reply (ECF No. 40). Both parties have filed
extensive exhibits. After careful consideration of the record
and for the reasons discussed below, the motion to dismiss is
Granted and the case is Dismissed.
following procedural background is not disputed by the
parties: In 2001, a jury in Santa Clara County Superior Court
convicted petitioner of first-degree burglary, receiving
stolen property, petty theft with a prior conviction, five
counts of forgery, and four counts of using an altered,
stolen or counterfeit credit card. The jury also found that
he had four "strike" priors, and he was sentenced
under California's "Three Strikes Law" to a
term of 90 years to life in state prison. In 2002, he
appealed the judgment to the California Court of appeal, and
on April 30, 2003, the judgment was affirmed. On June 10,
2003, petitioner's appellate counsel filed a petition for
review in the California Supreme Court, but it was denied as
untimely and the remittitur issued on July 1, 2003.
first state habeas petition was filed in and denied by the
Santa Clara County Superior Court while his direct appeal was
pending in the California Court of Appeal (Resp. Exh. R at
3). Petitioner's second state habeas petition was filed
in the Santa Clara County Superior Court in August 2003, and
it was denied on an unknown date (ibid.; Resp. Br. 2
n.2). Petitioner did not appeal the denial of these petitions
(ibid.). On June 24, 2014, petitioner filed a third
habeas petition in the superior court, and it was denied on
July 31, 2014, as repetitious, untimely and meritless (Resp.
Exh. R at 10, 14). He filed a fourth habeas petition on
September 24, 2014, in the superior court, and it was also
denied as untimely, lacking merit, and repetitious on
November 3, 2014 (id. 89, 2-6).
filed the instant petition on February 5, 2015.
Motion to Dismiss
statute of limitations is codified at 28 U.S.C. 2244(d).
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.
28 U.S.C. 2244(d)(2).
judgment became final under Section 2244(d)(1)(A) on July 1,
2003, when the California Supreme Court issued the remittitur
after denying petitioner permission to file a late appeal.
The limitations period expired one year later, on July 1,
2004. Under the "mailbox rule" the instant petition
is deemed filed when it was given to prison authorities for
filing. See Houston v. Lack, 487 U.S. 266, 276
(1988). The instant petition was presumably given to prison
officials on the date it was signed - January 23, 2015 -
which is over ten and a half years after the limitations
period expired. Absent tolling for that amount of time, the
instant petition is untimely.
during which a properly filed application for state
post-conviction or other collateral review is pending is
excluded from the one-year time limit. 28 U.S.C. 2244(d)(2).
Petitioner's first state habeas petition does not toll
the limitations period because it was filed and denied while
the direct appeal was still pending, and therefore the
limitations period had not yet begun to run. Petitioner's
second state habeas petition, filed in August 2003, would
appear to toll the limitations period. The date that petition
was denied is not known, but it is assumed that it was not
pending for longer than the statutory limit of 60 days.
See Cal. R. Ct. 4.551(a)(3)(A) (allowing superior
court up to 60 days to rule on a habeas petition). In any
event, it is safely assumed that the petition was not pending
for long enough to provide over ten and a half years of
tolling. Petitioner's final two state habeas petitions do
not toll the limitations period under Section 2244(d)(2) for
two reasons: first, they were denied as untimely, see
Carey v. Saffold, 536 U.S. 214, 226 (2002) (when
California court denies state habeas petition as untimely,
there is no tolling under Section 2244(d)(2)), and secondly,
they were filed long after the limitations period had already
expired, see Ferguson v. Palmateer, 321 F.3d 820,
823 (9th Cir. 2003) (holding that once AEDPA's
limitations period has run, state habeas petition cannot
revive it). Accordingly, tolling under Section 2244(d)(2)
does not render the instant petition timely.
argues that he is entitled to equitable tolling because he
had mental health problems for which he was receiving
medication for 11 years (Pet. 7). "[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." Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at
418). Eligibility for equitable tolling due to mental
impairment requires the petitioner to meet a two-part test:
(1) First, a petitioner must show his mental impairment was
an extraordinary circumstance beyond his control by
demonstrating the ...