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Broxton v. Arnold

United States District Court, E.D. California

May 11, 2017

JOHN BROXTON, Petitioner,
v.
E. ARNOLD, Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the petition filed July 1, 2016, pursuant to the mailbox rule. Petitioner challenges his 2011 convictions for second degree robbery. Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. (ECF No. 11.) For the reasons stated herein, the undersigned recommends that respondent's motion be granted.

         II. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that, //// A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody, pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) 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;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 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).

         The California Supreme Court denied petitioner's petition for review on August 27, 2014. (Respondent's Lodged Document 4.) Therefore, petitioner's conviction became final 90 days later on November 25, 2014, when the period for filing a petition for writ of certiorari with the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The one year limitations period commenced running the following day, i.e., November 26, 2014. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

         The instant action is not timely unless petitioner is entitled to statutory or equitable tolling.

         III. Statutory Tolling Legal Standard

         Section 2244(d)(2) suspends the limitations period not only for the time during which a “properly-filed” application for post-conviction relief is “pending” in state court but also, in appropriate circumstances, “during the intervals between the denial of a petition by one court and the filing of a new petition at the next level, if there is not undue delay.” Biggs v. Terhune, 339 F.3d 1045, 1046 (9th Cir. 2003); see also Carey v. Saffold, 536 U.S. 214, 219-225 (2002) (in California cases, a post-conviction matter is “pending” between the denial of a petition in a lower court and the filing, “within a reasonable time, ” of a “further original state habeas petition in a higher court”). Continuous tolling under Section 2244(d)(2)-commonly referred to as interval or gap tolling-is available only if a prisoner acted promptly in seeking relief at the next state court level. See Evans v. Chavis, 546 U.S. 189, 191-92 (2006); Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005).

         The statute of limitations is not tolled between the time the petitioner's conviction becomes final on direct review and the time the first state collateral challenge is filed because there is no case “pending” during that time. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).

         Background of State Court

         Petitions Pursuant to the mailbox rule, petitioner filed his first state habeas petition in the Sacramento County Superior Court on January 30, 2013. (Respondent's Lodged Document 5.) The Superior Court denied this petition on March 13, 2013. (Respondent's Lodged Document 6.)

         Pursuant to the mailbox rule, petitioner filed his next state habeas petition in the California Supreme Court on February 7, 2016. (Respondent's Lodged Document 7.) The California Supreme Court denied this petition, without comment or citation, on April 20, 2016. (Respondent's Lodged Document 8.)

         Discussion

         Petitioner is not entitled to statutory tolling for his first state habeas petition because it was denied before the effective date of the statute of limitations. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (state petition denied before statute of limitations started to run “had no effect on the timeliness of the ultimate federal filing”).

         Petitioner is not entitled to statutory tolling for the petition filed in the California Supreme Court because it was filed after the statute of limitations expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (filing a state habeas petition after the AEDPA statute of limitations had expired “resulted in an absolute time bar”).

         For the reasons stated herein, the undersigned also finds that petitioner is not entitled to gap tolling for the almost three years between the time the Superior Court denied his petition and when he filed his petition in the California Supreme Court.[1]

         Under California law, a habeas petition is timely only if filed within a “reasonable time.” See Chavis, 546 U.S. at 192. Because “California courts had not provided authoritative guidance on this issue, ” the Supreme Court in Chavis “made its own conjecture … ‘that California's “reasonable time” standard would not lead to filing delays substantially longer than' between 30 and 60 days.” Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (quoting Chavis, 546 U.S. at 199). However, if a petitioner demonstrates good cause, California courts allow a longer delay. Robinson, 795 F.3d at 929 (citing In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998)). A petition that has been substantially delayed may nevertheless be considered on the merits if the petitioner can establish good cause for the delay, such as investigation of a potentially meritorious claim, or to avoid piecemeal presentation of claims. Robbins, 18 Cal.4th at 780.

         When the timeliness of a federal habeas petition is at issue, and there is not clear indication by the state court whether or not the underlying claim was timely, “the federal court ‘must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.'” Stewart v. Cate, 757 F.3d 929, 935 (9th Cir. 2014) (quoting Chavis.) In other words, even if the California court did ...


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