United States District Court, N.D. California
ORDER OF DISMISSAL DOCKET NO. 14
M. CHEN United States District Judge.
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.
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.
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.)
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).
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
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).
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.
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.
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.
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, ...