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Smith v. Soto

United States District Court, N.D. California

May 1, 2017

BOBBIE L. SMITH, Petitioner,
JOHN SOTO, Respondent.

          ORDER OF DISMISSAL RE: DKT. NOS. 15, 26

          SUSAN ILLSTON United States District Judge.

         Bobbie Lee Smith filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the habeas petition as untimely. Smith has not filed an opposition to the motion, although the deadline by which to do so was extended several times. For the reasons discussed below, the court dismisses the action as barred by the habeas statute of limitations.


         Bobbie Lee Smith was convicted in Alameda County Superior Court of attempted murder, assault with a firearm, shooting at an inhabited dwelling, and child endangerment. Sentence enhancement allegations that Smith had suffered a prior conviction and had personally used and discharged a firearm were found true. On March 7, 2012, he was sentenced to a total prison term of 51 years and eight months.

         Smith appealed. On August 30, 2013, the California Court of Appeal stayed the prison term for shooting at an inhabited dwelling and otherwise affirmed the judgment of conviction. On November 26, 2013, the California Supreme Court denied Smith's petition for review. Smith did not file a petition for writ of certiorari in the United States Supreme Court. He also did not file any state habeas petitions.

         Smith filed two federal actions for writ of habeas corpus: Case No. 15-cv-1633 PSG, and this action (Case No. 16-cv-697 SI).

         Case No. 15-cv-1633 PSG: The first federal action had a lot of activity yet made very little progress. On February 26, 2015, Smith signed his petition and apparently mailed it to the U.S. District Court for the Central District of California. Case No. 15-cv-1633 at Docket No. 1 at 8.[1]The action was filed in the Central District on March 9, 2015, and was transferred to this district on March 25, 2015. On August 3, 2015, the court dismissed the petition with leave to file an amended petition within thirty days because Smith had not specified any legal grounds for relief or supporting facts in his petition. See Case No. 15-cv-1633 at Docket No. 12. On September 17, 2015, the court dismissed the action without prejudice because Smith had not filed an amended petition or otherwise communicated with the court. Id. at Docket No. 13. On November 5, 2015, Smith filed a motion to reopen, stating that he had requested but had not received a habeas petition form from the court. Id. at Docket No. 16. On November 25, 2015, the court directed the clerk to send to Smith two habeas petition forms, and directed Smith to file an amended petition within thirty days at which time the court would consider his motion to reopen the action. Id. at Docket No. 17. The court cautioned Smith that the first page of his amended petition had to include the case number and be marked as an “amended petition” on the first page. Id. On December 17, 2015, Smith requested an extension of the deadline to file an amended petition. Id. at Docket No. 18. On January 7, 2016, the court granted Smith a 30-day extension of the deadline and cautioned that the action would be dismissed if he did not file the amended petition by the deadline. Id. at Docket No. 19. Smith did not file an amended petition, and the court denied the motion to reopen the action on February 23, 2016. Id. at Docket No. 20. Smith did not file any more documents in the first action, and never filed anything in Case No. 16-cv-697 indicating that he had intended his filings in that action to be filed in this first action.

         Case No. 16-cv-697 SI: In this, the second federal action, Smith signed and gave his petition to prison officials to mail to the court on January 25, 2016. Docket No. 1 at 7; Docket No. 1-1 at 1. The envelope containing the petition was stamped “received” at the courthouse on January 28, 2016, and the petition was stamped “filed” on February 11, 2016. Docket No. 1 at 1 and Docket No. 1-1 at 2. The petition was a bare-bones petition: only two pages mentioned the legal grounds for relief (without actually mentioning the federal constitutional basis for any claim) and directed the reader to exhibits to the petition for his argument about the legal grounds for relief. See Docket No. 1 at 9-10. But no exhibits were attached to the petition. The court ordered Smith to provide those exhibits, noting that without those exhibits the court could not determine that the petition warranted a response from respondent. Docket No. 8. Smith then requested a 30-day extension of the deadline to file the exhibits because he did not have them. Docket No. 9. The court extended the deadline to July 22, 2016, and Smith filed the exhibits on July 21, 2016. Docket No. 11. The exhibits were excerpts of the appellate briefs from Smith's state court appeal. (The appellate briefs had been sent to Smith by his attorney when they were filed in 2013. See Docket No. 13-4 at 15 (Appellant's Opening Brief proof of service); Docket No. 13-6 at 14 (Petition For Review proof of service).) On August 16, 2016, Smith filed a typed copy of his petition. Docket No. 13.


         A. The Latest Request For Extension Of The Deadline

         Smith's request for an extension of the oft-extended deadline to file an opposition to respondent's motion to dismiss is DENIED. (Docket No. 26.) The original deadline was December 9, 2016; the deadline was extended to January 13, 2017, when the court received a letter from Smith stating that he had not received the motion to dismiss due to a prison transfer; then, upon Smith's several requests, the deadline was further extended to February 10, 2017, then to March 3, 2017, and then to April 21, 2017. In the order granting Smith's last request for an extension of the deadline to file an opposition and setting a deadline of April 21, 2017, the court stated: “[n]o more extensions of this deadline will be granted because, by the time it arrives, petitioner will have had more than four months to prepare his opposition.” Docket No. 26 (emphasis omitted). Respondent's motion to dismiss was filed on November 10, 2016, and five months was more than enough time for a diligent petitioner to prepare a response to it. The court cautioned him that the oft-extended deadline would not be further extended, but Smith failed to meet the deadline.

         Having cautioned Smith that the deadline would not further be extended, the court sees no reason to relieve him of his failure to meet the deadline. Smith has never described his efforts to obtain the unidentified documents that he purported to need to prepare his opposition, e.g., the date(s) on which he requested those documents and the step(s) he took to follow up to try to obtain them, nor does he explain what those documents are or how they would enable him to avoid dismissal. And there is no indication that he attempted to prepare an opposition without the documents. The docket sheets for this action and the action filed in 2015 provide a rather clear picture of repeated delays, rather than diligence, by Smith. The court also notes that, if the documents he purportedly was seeking pertain to the filing of the action in 2015, the court has been able to piece together a chronology from the court's docket and has taken it into account in evaluating the motion to dismiss.

         B. The Petition Is Untimely

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time has passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme ...

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