United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY (Doc.
K. Oberto UNITED STATES MAGISTRATE JUDGE
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
Procedural and Factual Background
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
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.
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.
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.
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
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. 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.
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.
filed the above-captioned petition on August 4, 2015.
Respondent moved to dismiss the petition as untimely on
February 5, 2016.
Timeliness of the Pending Petition
Commencement of the Statutory Limitations
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
(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).
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
Tolling of Statutory Limitation Period
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.
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
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.
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).
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).
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).