Steward v. Sherman

          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.

         INTRODUCTION

         This is 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.

         STATEMENT

         The 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.

         Petitioner's 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).

         Petitioner filed the instant petition on February 5, 2015.

         ANALYSIS

         I. Motion to Dismiss

         The 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).

         Petitioner's 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.

         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). 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.

         Petitioner 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 ...