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Shepherd v. Spearman

United States District Court, E.D. California

March 23, 2017

SHAWN CHRISTOPHER SHEPHERD, Petitioner,
v.
M.E. SPEARMAN Respondent.

          ORDER AND FINDINGS & RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court are respondent's motion to dismiss (ECF No. 14) and petitioner's opposition (ECF No. 17). Petitioner's opposition includes requests for a certificate of appealability and appointment of counsel. ECF No. 17 at 22-24. Also before the court are petitioner's motion to proceed on the merits (ECF No. 20) and respondent's opposition (ECF No. 22).

         I. Factual and Procedural Background

         Petitioner was convicted of (1) second-degree murder, (2) identity theft, and (3) forgery. ECF No. 1 at 1. Petitioner filed a petition for direct review in the California Supreme Court which was denied on January 3, 2013. Id. at 2; Lod. Doc. No. 3. He subsequently filed a habeas corpus petition in the California Supreme Court on December 18, 2014.[1] Lod. Doc. No. 4. The petition was denied on May 13, 2015. ECF No. 17 at 40; Lod. Doc. No. 5 On July 24, 2015, petitioner filed the instant petition for a writ of habeas corpus. ECF No. 1. Respondent was ordered to respond to the petition (ECF No. 6) and filed a motion to dismiss (ECF No. 14). Petitioner opposes respondent's motion to dismiss. ECF. No 17.

         Subsequently, petitioner filed a motion to proceed on the merits of his habeas corpus petition (ECF No. 20), which respondent opposes (ECF No. 22). II. Motion To Dismiss Respondent contends that the instant petition must be dismissed because it is untimely. ECF No. 14 at 4. In opposition, petitioner argues that he is entitled to a later trigger date or equitable tolling due to a state impediment. ECF No. 17 at 6. He also argues that his claims are not procedurally defaulted and are reviewable by this court. Id. at 7, 9, 16-17. Finally, petitioner claims his petition merits equitable tolling based on actual innocence. Id. at 10-11, 17-18.

         For the reasons set out below, the undersigned finds that petitioner did not submit his petition in a timely manner and is barred by the statute of limitations. Therefore, respondent's motion to dismiss should be granted.

         A. Legal Standard for the Statute of Limitations

         Section 2244(d)(1) of Title 28 of the United States Code contains a one-year statute of limitations for filing a habeas petition in federal court. This statute of limitations applies to habeas petitions filed after April 24, 1996, when the Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into effect. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The one-year clock commences from one of several alternative triggering dates. 28 U.S.C. § 2244(d)(1). In this case, the potentially applicable dates are that “on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” and “the date on which the impediment to filing an application created by 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.” 28 U.S.C. § 2244(d)(1)(A), (B).

         An otherwise untimely habeas corpus petition may be found timely if the petitioner is entitled to equitable tolling. Holland v. Florida, 560 U.S. 631, 645, 649 (2010). Petitioner is only entitled to equitable tolling if he shows “(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). A petitioner may also be entitled to statutory tolling. The limitations period is statutorily tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

         B. Alleged Impediment

         Petitioner alleges that California Department of Corrections and Rehabilitation (“CDCR”) officials did not answer his requests to recover missing documents pertaining to his conviction, which delayed his ability to complete and submit a state collateral action. ECF No. 17 at 14-16, 21-22. Specifically, he alleges that he transferred prisons on December 3, 2013, and that some of his court transcripts and legal documents, including his draft state habeas corpus petition, were misplaced in the transfer. Id. at 43. Between December 3, 2013, and September 4, 2014, petitioner filed numerous requests to CDCR to obtain his misplaced documents, which were returned to him on September 4, 2014. ECF No. 17 at 31-37. He claims this period is entitled to equitable tolling. Id. at 21. Thus, he argues that his instant habeas corpus petition is not barred by the statute of limitations because the state impediment entitles him to a later trigger date and alternatively that the length of the state impediment, when subtracted from the time his petition was overdue, makes the petition timely. Id. at 21-22.

         C. Applicable Trigger Date

         In most instances, the date on which the statute of limitations begins to run is based upon the date the petitioner's conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). Petitioner argues that he is entitled to an alternate trigger date based on the existence of a state impediment. ECF No. 17 at 21-22 (citing 28 U.S.C. § 2244(d)(1)(B)). Under § 2244(d)(1)(B), the statute of limitations begins to run from “the date on which the impediment to filing an application created by 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.” Petitioner alleges that the state's failure to return his legal papers to him created a state impediment that lasted from December 3, 2013 until September 4, 2014, and entitles him to a trigger date of September 4, 2014, when the impediment was lifted. ECF No. 17 at 21-22.

         The Ninth Circuit considered a similar argument in Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2099). In Ramirez, the petitioner argued that “his placement in administrative segregation and its attendant limitations on his access to his legal file and the prison law library amounted to an unlawful impediment to his ‘constitutional right of access to the courts.'” Id. at 1000 (citing Lewis v. Casey, 518 U.S. 343, 346 (1996) (some internal quotation marks omitted). The Ninth Circuit held that:

[a]lthough similar in style, Ramirez's 28 U.S.C. § 2244(d)(1)(B) claim must satisfy a far higher bar than that for equitable tolling. He may be entitled to equitable tolling during the period he was without his legal materials if the deprivation of his legal materials made it impossible for him to file a timely § 2254 petition in federal court. There is no constitutional right to file a timely § 2254 petition, however-Ramirez is entitled to the commencement of a new limitations period under § 2244(d)(1)(B) only if his placement in administrative segregation altogether prevented him from presenting his claims in any form, to any court. See generally Lewis, 518 U.S. at 350-51.

Id. at 1000-01.

         Petitioner has not met the high bar set by § 2244(d)(1)(B). His first request to CDCR regarding his missing paperwork, and his declaration in opposition to the motion to dismiss, state only that some of his transcripts and legal documents, including his writ of habeas corpus, were missing. ECF No. 17 at 31, 43. There are no allegations that petitioner was prevented from trying to obtain a copy of his trial transcripts or other specific documents from trial or appellate counsel, or that he was unable to access the law library or seek assistance from other inmates in beginning to draft a replacement petition during the time he was without portions of his legal property. Although the lack of some of his trial transcripts may have made drafting a replacement petition more difficult, there is no evidence that it was impossible. Ultimately, there is no indication that petitioner's lack of some legal paperwork “prevented him from presenting his claims in any form, to any court.” Petitioner therefore is not entitled to an alternate trigger date based on a state impediment. Instead, the limitations period began to run against petitioner when his conviction became final.

         In this case, petitioner sought direct review of his conviction from the California Supreme Court, which was denied on January 3, 2013. Lod. Doc. No. 3. The record shows petitioner did not submit a petition for writ of certiorari to the Supreme Court of the United States. ECF No. 1 at 3. Consequently, petitioner's conviction became final at the expiration of the ninety-day period to seek certiorari immediately following the decision of the state's highest court. Clay v. United States, 537 U.S. 522, 528 n.3 (2003); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Petitioner's conviction therefore became final on April 3, 2013, and ADEPA's one-year clock began to run on April 4, 2013. Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (citing Fed.R.Civ.P. 6(a)) (the day order or judgment becomes final is excluded and time begins to run the day after the judgment becomes final). Absent tolling, petitioner had until April 3, 2014, to file a federal habeas corpus petition.

         D. Equitable and ...


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