Motley v. Unknown

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to dismiss on grounds that the petition is barred by the statute of limitations. (ECF No. 10.) For the reasons stated herein, the parties are ordered to file further briefing addressing petitioner’s claim for equitable tolling.

         This action proceeds on the original petition filed, pursuant to the mailbox rule, on January 6, 2016. Petitioner challenges his 2010 conviction for first degree burglary, corporal injury to a co-parent, assault with force likely to produce great bodily injury, misdemeanor child abuse, felon in possession of ammunition, felon in possession of a firearm, and two counts of assault with a firearm. Petitioner is serving a sentence of 15 years.

         Petitioner raises the following claims: 1) denial of right to confront accuser (claim 1); 2) prosecutorial misconduct (claims 2 and 3); 3) state court erred in denying petitioner’s claims (claim 4); and 4) ineffective assistance of counsel (claim 5).

         The one year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner’s control prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner seeking equitable tolling must establish two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

         In the opposition to the motion to dismiss, petitioner argues that he is entitled to equitable tolling, in part, because he had to wait to file his habeas corpus petition in the California Court of Appeal until after he received a letter from the victim that had been admitted into evidence at an evidentiary hearing held in state court. For the reasons stated herein, the parties are ordered to file further briefing addressing this claim for equitable tolling. The background to this claim is as follows.

         In claims two and three, petitioner alleges that the prosecutor withheld exculpatory evidence and committed misconduct. Petitioner alleges that he was convicted of various felonies with alleged use of a firearm against victims Calvin Lynn and Vanity Rainey. Petitioner alleges that at trial, Rainey testified that petitioner used a gun against both her and victim Lynn. Petitioner alleges that on November 19, 2013, he received a declaration from Rainey stating that she committed perjury when she testified that petitioner had a gun when he committed the crimes. Rainey also stated that she told the prosecutor before taking the witness stand that petitioner was never in possession of a gun. Rainey claimed that the prosecutor told her, “It’s okay. Just stick to the report.” Rainey also claimed that she asked the prosecutor if she could take her anxiety medication before she testified, and he told her, “Yes, just don’t tell the defense attorney.” Rainey stated that the medication had her so far gone that she was a puppet in the prosecutor’s hands.

         Pursuant to the mailbox rule, on December 29, 2013, petitioner filed a habeas corpus petition in the Sacramento County Superior Court raising the claims raised in the instant action, but for the claim challenging the state court’s denial of his claims. (Respondent’s Lodged Document 5.) On March 5, 2014, the trial court denied petitioner’s confrontation clause and ineffective assistance of counsel claims. (Id.) On November 14, 2014 and January 23, 2015, the Superior Court held an evidentiary hearing addressing petitioner’s claims based on the Rainey declaration. (Id.) On February 9, 2015, the Superior Court denied the claims based on the Rainey declaration. (Id.)

         On May 31, 2015, pursuant to the mailbox rule, petitioner filed a habeas corpus petition in the California Court of Appeal. (Respondent’s Lodged Document 7.) On June 11, 2015, the California Court of Appeal denied this petition. (Respondent’s Lodged Document 8.)

         On June 30, 2015, pursuant to the mailbox rule, petitioner filed a habeas corpus petition in the California Supreme Court. (Respondent’s Lodged Document 9) On December 16, 2015, the California Supreme Court denied this petition. (Respondent’s Lodged Document 10.)

         In his opposition to the pending motion to dismiss, petitioner argues that the Superior Court relied on a letter written to him by victim Vanity Rainey in September 2013 to deny his habeas petition. (ECF No. 14 at 7.) Attached to the opposition is a copy of this letter, dated September 3, 2013. (Id. at 31-32.) It was apparently based on this letter that petitioner obtained the November 2013 declaration from Rainey stating that petitioner did not have a gun.

         In his opposition, petitioner argues that he could not file his habeas petition in the California Court of Appeal until he obtained Rainey’s September 2013 letter, relied on by the Superior Court. (Id. at 7.) Petitioner alleges that to obtain the letter, he had to go through the lawyer who represented him at the evidentiary hearing, Mr. Templeton. (Id.) Petitioner alleges that Mr. Templeton had to get the letter from the Superior Court, where it had been admitted into evidence. (Id. at 7-8.) Petitioner alleges that Mr. Templeton mailed him the letter on May 8, 2015. (Id.) Attached to the opposition is an envelope addressed to petitioner from Mr. Templeton postmarked May 8, 2015. (Id. at 30.)

         Petitioner argues that he filed his habeas corpus petition in the California Court of Appeal on May 31, 2015, which was shortly after he received the Rainey letter. To put petitioner’s argument in context, the undersigned herein sets forth Rainey’s September 2013 letter, ...