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Delaney v. Gastelo

United States District Court, E.D. California

June 29, 2016

LONNIE DEFORE DELANEY, Petitioner,
v.
JOSIE GASTELO, Warden at California Men's Colony, Respondent.

          FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY (Doc. 22)

          Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

         Petitioner Lonnie Defore Delaney is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Josie Gastelo, Warden, California Men's Colony, San Luis Obispo, California, moves to dismiss the petition as untimely. The undersigned agrees that the petition is untimely and recommends that the Court dismiss it.

         I. Procedural and Factual Background

         In Kern County Superior Court on December 20, 2001, Petitioner was convicted of shooting at an inhabited dwelling house (Cal. Penal Code § 246), allowing the discharge of a firearm from a motor vehicle (Cal. Penal Code § 12034(b)), and possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). On January 11, 2002, Petitioner moved for a new trial and for an order disclosing personal information of two jurors who allegedly failed to reveal to the court that they knew Petitioner. On January 22, 2002, the trial court denied the new trial motion. The court then imposed an indeterminate sentence of fifteen years to life imprisonment with the possibility of parole. On February 7, 2002, Petitioner filed a direct appeal to the California Court of Appeal, Fifth Appellate District.

         On January 15, 2004, the Court of Appeal reversed and remanded the case to the Superior Court to conduct a hearing to determine the necessity of disclosure of confidential identifying information of two jurors who may have known Petitioner. On February 26, 2004, Petitioner filed a petition for review with the California Supreme Court, which denied the petition on March 30, 2004.

         On August 6, 2004, the Kern County Superior Court convened a hearing regarding identification of the jurors and again denied Petitioner's new trial motion. As a result, the Superior Court reinstated the judgment of conviction. On February 3, 2006, the California Court of Appeal affirmed. On March 10, 2006, Petitioner filed a petition for review, which the California Supreme Court denied on April 26, 2006.

         On July 26, 2005, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. On August 8, 2005, the Superior Court denied the petition, finding that Petitioner failed to state a prima facie case for relief. On August 8, 2006, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. The Court of Appeal summarily denied the petition on September 14, 2006. On June 13, 2007, Petitioner filed a habeas petition in the California Supreme Court, which summarily denied the petition on November 28, 2007.

         On March 24, 2008, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. See Delaney v. Dextor (E.D.Cal.) (No. 1:08-cv-00418-AWI-SMS HC). On July 7, 2008, the Court adopted the Magistrate Judge's findings that the petition did not allege facts indicating exhaustion of claims and dismissed the petition with leave to amend. Id. On September 8, 2008, the Court dismissed the petition for failure to prosecute. Id.

         On December 23, 2013, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. The petition presented the declaration of Isaac Darrell Rand, the passenger who pleaded guilty to charges arising from his firing a gun from the car that Petitioner was driving. Rand declared that Petitioner was not present at the scene of the shooting and that the car was driven by Petitioner's late brother Donte Delaney.[1] The Superior Court denied the petition on April 8, 2014. On July 29, 2014, Petitioner filed a habeas petition with the Court of Appeal, which denied relief on September 25, 2014.

         On November 25, 2014, Petitioner filed another habeas petition in the Court of Appeal, which summarily denied the petition on January 23, 2015. On March 23, 2015, Petitioner filed a petition with the California Supreme Court, which summarily denied it on July 8, 2015.

         Petitioner filed the above-captioned petition on August 4, 2015. Respondent moved to dismiss the petition as untimely on February 5, 2016.

         II. Timeliness of the Pending Petition

         A. Commencement of the Statutory Limitations Period

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA provides a one-year period of limitation in which a petitioner may file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period is measured from the latest of:

(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing a State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

         Direct review in the State of California ended April 26, 2006, when the California Supreme Court denied the petition for review. The statutory limitation period began on July 26, 2006, following the expiration of the 90-day period in which to file a petition for writ of certiorari in the United States Supreme Court.

         B. Tolling of Statutory Limitation Period

         The limitation period is tolled during the pendency of a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim. 28 U.S.C. § 2244(d)(2). As detailed in the procedural and factual background above, Petitioner has filed multiple state collateral actions.

         Under California law, "a state prisoner may seek review of an adverse lower court decision by filing the original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a ‘reasonable time.'" Evans v. Chavis, 546 U.S. 189, 192-93 (2006). "As long as the prisoner filed a petition for appellate review within a ‘reasonable time, ' he could count as ‘pending' (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision; and (2) the day he filed a petition in the higher state court." Id. at 193.

         When the state court has explicitly ruled that the gap period between the lower court's decision and the prisoner's filing of an appeal or new petition was unreasonable, a federal court need conduct no further inquiry. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). If the state court did not explicitly state whether the gap period was reasonable or unreasonable, the federal court must look to the state supreme court's decisions to determine whether the state would consider the second action to have been filed within a reasonable time. Evans, 546 U.S. at 198.

         In California, unjustified delays greater than six months are clearly unreasonable. Id. at 201. The Ninth Circuit agreed that in the absence of unusual facts justifying further delay, "a time gap in excess of six months was too long." Waldrip v. Hall, 548 F.3d 729, 731 (9th Cir. 2008). In many cases, shorter gaps have been found unreasonable. See, e.g., Stancle v. Clay, 692 F.3d 948, 956 (9th Cir. 2012) (denying tolling for an 82-day delay); Velasquez v. Kirkland, 639 F.3d 964, 967-69 (9th Cir. 2011) (denying tolling for 80 and 91-day gaps); Banjo v. Ayers, 614 F.3d 964, 970 (9th Cir. 2010) (finding 146-day gap unreasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (no tolling for delays of 101 and 115 days).

         Petitioner's first habeas petition, filed in Kern County Superior Court on July 26, 2005, was resolved on August 8, 2005, before the conclusion of his direct appeal. As a result, no tolling is necessary for this action. See Waldrip, 548 F.3d at 735 (holding that a habeas petition filed and resolved before state direct review became final has no effect on the timeliness of the ultimate federal filing).

         The statutory limitations period began on July 26, 2006, and ran for 13 days before Petitioner filed a habeas petition in the Court of Appeal on August 8, 2014. After the Court of Appeal denied the petition on September 14, 2006 (37 days), Petitioner took no further action until filing a habeas petition in the California Supreme Court 272 days later on June 13, 2007. Under the cases summarized above, Petitioner is not entitled to tolling during the 272-day gap, at the end of which the remaining limitations period was 80 days. The statute was tolled for 168 days from its filing on June 13, 2007, until the California Supreme Court summarily denied the petition on November 28, 2007. The limitation period then ended 80 days later on February 18, 2008. Petitioner's subsequent state actions did not revive the limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

         C. ...


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