Adams v. Davis

          ORDER OF DISMISSAL DOCKET NO. 14

          EDWARD M. CHEN United States District Judge.

         I. INTRODUCTION

         Kaseem Adams filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the habeas petition as untimely, and Mr. Adams has opposed the motion. For the reasons discussed below, the Court dismisses the action as untimely because the statute of limitations deadline expired more than 15 years before Mr. Adams filed his habeas petition.

         II. BACKGROUND

         On March 23, 1999, Mr. Adams pled guilty in Alameda County Superior Court to voluntary manslaughter with the use of a firearm, attempted murder, and solicitation of murder. He was sentenced that day to 26 years, eight months in prison. He did not appeal.

         About 15 years later, Mr. Adams filed three habeas petitions asserting a claim about his allegedly invalid sentence. He filed a habeas petition on April 9, 2014, in the Alameda County Superior Court, that was denied as untimely and meritless on May 22, 2014. Docket No. 14 at 25-26. Mr. Adams states that he filed a habeas petition in the California Court of Appeal on an unstated date, that was denied on June 13, 2014. Docket No. 1 at 4. Finally, Mr. Adams filed a habeas petition in the California Supreme Court on May 26, 2015, that was denied on August 19, 2015. Docket No. 14 at 74. The California Supreme Court, s order denying the habeas petition was a one-sentence order with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998), which stands for a rejection of a petition on the ground of untimeliness. (Mr. Adams also filed state habeas petitions in 2012 and 2013, but those pertained to prison disciplinary proceedings and therefore are irrelevant to the timeliness of his challenge to his 1999 conviction and sentence.)

         Mr. Adams then filed his federal habeas petition. His federal habeas petition asserts a single claim that his upper-term sentence on the voluntary manslaughter conviction violated his Sixth and Fourteenth Amendment rights. According to Mr. Adams, a voluntary manslaughter conviction had three possible sentences -- 3, 6 or 11 years -- and the trial court, s choice of the upper term of 11 years for him violated his Sixth and Fourteenth Amendment rights, as explained in the line of cases that includes Cunningham v. California, 549 U.S. 270 (2007), and Apprendi v. New Jersey, 530 U.S. 466 (2000).^[1]

         Mr. Adams, federal habeas petition has a proof of service showing that he mailed it to the Court on September 17, 2015. The petition was stamped "filed" at the courthouse on September 23, 2015. Docket No. 1 at 1, 10. Applying the prison mailbox rule, the Court assumes for present purposes that Mr. Adams gave his petition to prison officials to mail on the date he signed the proof of service, and deems the petition to have been filed as of September 17, 2015. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule provides that pro se prisoner's filing of a document is deemed to have occurred when he gives it to prison officials to mail to the court).

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed 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: (1) the judgment became final after the conclusion of direct review or the time has passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) 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 (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

         The limitations period in this case began when the judgment became final upon "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A). If, as here, a petitioner could have sought review in the state court of appeals or the state supreme court, but did not, the limitations period will begin running against him the day after the date on which the time to seek such review expired. Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). The rule for California criminal defendants in 1999 was that, where the defendant did not pursue a direct appeal, his judgment became final 60 days after the sentence was imposed. See former Cal. Rule of Court 31, as amended eff. Jan. 1, 1994 (renumbered Cal. Rule of Court 8.308, and amended eff. Jan. 1, 2007); People v. Mendez, 19 Cal.4th 1084, 1094 (Cal. 1999); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) Here, Mr. Adams was sentenced on March 23, 1999, and his judgment became final 60 days later, on May 22, 1999, because he did not appeal. His one-year limitations thus began on May 23, 1999, and he had a presumptive deadline of May 22, 2000 to file his federal habeas petition.

         Mr. Adams argues that an alternative starting date for the limitations period should be used due to changes in the law regarding sentencing. He argues that the court should apply § 2244(d)(1)(D), which starts the limitations period on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Section 2244(d)(1)(D) does not apply because none of the cases in the Apprendi line was "the factual predicate" of Mr. Adams, claim. A court decision clarifying, changing or establishing an abstract proposition of law arguably helpful to a petitioner, s claim does not constitute the "factual predicate" for that claim. See Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005); cf. id.at 1089 (although court decisions in general do not form the factual predicate, a court decision in the petitioner, s own case - e.g., the reversal of his underlying conviction - may be a "factual predicate" for that particular petitioner); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (limitations period begins "„when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance, "). One case Mr. Adams identifies and relies heavily upon, Jones v. United States, 526 U.S. 227 (1999), was decided before his conviction even became final. Jones was decided on March 24, 1999, and Mr. Adams, conviction did not become final until almost two months later on May 22, 1999, so it would be to Mr. Adams, detriment to use that decision as the starting date for the limitations period. Regardless of that problem, the Jones case (like the cases in the Apprendi line) did not provide the factual predicate for his claim. Because none of the Supreme Court decisions cited by Mr. Adams provided the factual predicate for Mr. Adams, claim, the delayed starting date of the limitations period set out in § 2244(d)(1)(D) does not apply to Mr. Adams, case.

         The other possible delayed starting date for the limitations period, under § 2244(d)(1)(C), also does not help Mr. Adams because it does not apply to him and, even if it did apply, would not make his petition timely. Under § 2244(d)(1)(C), the limitations period begins 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." The Ninth Circuit has determined that Cunningham did not announce a new rule of law because the result was clearly dictated by Apprendi, Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). See Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). As the Ninth Circuit explained, Cunningham "simply applied the rule of Blakely to a distinct but closely analogous state sentencing scheme, " and applies to convictions that became final on direct review after the decision in Blakely on June 24, 2004. Butler, 528 F.3d at 636, 639. Butler thus forecloses the use of Cunningham as the date under which the limitations period would start under § 2244(d)(1)(C) because Butler determined that Cunningham did not announce a newly recognized right. Butler suggests that the date the right was newly recognized was June 24, 2004, when Blakely was decided. Blakely was decided after Mr. Adams, conviction became final and was not made retroactive to cases on collateral review. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005) (concluding that the new rule announced in Blakely does not apply retroactively to a conviction and sentence that were final before that decision was announced); see also Reedy v. Hill, 383 F. App, x 689, 690 (9th Cir. 2010) (petitioner, s argument that § 2244(d)(1)(C) applied and limitations period was measured from decision in Blakely "lacks merit" because Blakely does not apply retroactively to a conviction that has become final). Apprendi was decided after Mr. Adams, conviction became final and Apprendi was not made retroactive to cases on collateral review. United States v. Sanchez-Cervantes, 282 F.3d 664, 668-71 (9th Cir. 2002) (Apprendi does not apply retroactively to cases on collateral review). Because Apprendi and Blakely were not made retroactively applicable to cases on collateral review, neither of those cases can provide the starting date under § 2244(d)(1)(C). And Cunningham cannot provide the starting date under § 2244(d)(1)(C) because, as held in Butler, Cunningham applies only to convictions that became final on direct review after Blakely was decided on June 24, 2004, which was more than five years after Mr. Adams, conviction became final. In short, § 2244(d)(1)(C) does not provide the appropriate starting date for the limitations period here because Mr. Adams lacks a Supreme Court case newly recognizing a constitutional right that has been determined to be retroactively applicable to cases on collateral review. The Court notes that, even if subsection (C) applied and the latest of those decisions (Cunningham) were used as the starting date for the limitations period, the resulting starting date would have been in 2007, so that the limitations period would have expired about seven years (rather than 15 years) before Mr. Adams filed his federal habeas petition.

         Thus, the alternative starting dates in § 2244(d)(1)(C) and (D) do not apply to Mr. Adams, case. The applicable starting date is that in § 2244(d)(1)(A). Mr. Adams, one-year limitations period began on May 23, 1999, the day after his conviction became final, ...