United States District Court, E.D. California
ERNEST E. MOTLEY, Petitioner,
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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
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.
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
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).
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.
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
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.
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.)
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.)
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.
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.)
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,