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Clark v. Gastelo

United States District Court, S.D. California

May 23, 2017

BRENT CLARK, Petitioner,
v.
J. GASTELO, WARDEN, Respondent.

          ORDER FOR FURTHER BRIEFING AND SUPPLEMENTATION OF THE COURT'S RECORD

          JAN M. ADLER, UNITED STATES MAGISTRATE JUDGE

         Petitioner Brent Clark is a state prisoner, proceeding without counsel, with a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Petitioner challenges his 2004 conviction for kidnapping for robbery, Cal. Pen. Code § 209(b)(1); forcible copulation, Cal. Pen. Code § 288a(c)(2); robbery, Cal. Penal Code § 211; and burglary, Cal. Penal Code § 459. [Id.] Respondent has filed a motion to dismiss, arguing the Petition must be dismissed because Petitioner's claims are barred by the one-year statute of limitations. [Doc. No. 10.] On January 17, 2017, Petitioner filed a brief in opposition to the motion to dismiss, contending that his Petition should be considered timely because he is entitled to equitable tolling, and on March 20, 2017, he filed supplemental exhibits in support of his opposition. [Doc. Nos. 15 & 16.] After careful consideration, the undersigned finds Petitioner should be granted the opportunity to further develop the record before the Court rules on the motion to dismiss.

         I. Introduction and Procedural Background

         Petitioner's efforts to challenge his conviction commenced with an appeal to the California Court of Appeal, in which he argued the trial court erred by: (1) failing to conduct a fifth hearing on his competency to stand trial; and (2) granting his request for self-representation despite his incompetence. [Lod. No. 1, App. at 2.] The Court of Appeal rejected these claims on the merits and affirmed the judgment on January 25, 2008. [Lod. No. 1, App.] Thereafter, Petitioner petitioned the California Court of Appeal for review of both claims. [Lod. No. 1.] The California Supreme Court denied review on May, 14, 2008. [Lod. No. 2.]

         The record indicates Petitioner did not take any further action to challenge his conviction for more than six years, until June 16, 2015, when he filed a motion in the San Diego Superior Court to modify his sentence by striking his restitution fine and reducing it to $200. [Lod. No. 3.] The motion was denied on July 20, 2015. [Id.] Petitioner then filed a notice of appeal on August 4, 2015. [Lod. No. 4.] The California Court of Appeal dismissed the appeal on September 3, 2015, finding the Superior Court's order was not appealable because it did not affect Petitioner's substantial rights, and noting the Superior Court lost jurisdiction to resentence Petitioner once the execution of his sentence commenced. [Lod. No. 5.]

         On January 21, 2016, Petitioner filed a habeas petition in the Superior Court, claiming (1) his trial and appellate counsel were ineffective in failing to raise and investigate issues relating to sentencing; (2) the trial court abused its discretion in failing to dismiss one or more strike allegations; (3) the trial court should not have permitted him to waive counsel because he was mentally incompetent; and (4) the trial court should not have permitted him to represent himself because of his mental incompetence. [Lod. No. 6.] On March 3, 2016, the Superior Court found the habeas petition was “procedurally barred for being untimely.” [Lod. No. 7, at 3-4.] The court also rejected Petitioner's ineffective assistance of counsel claims as conclusory and ruled Petitioner's sentencing error claim was “fatally flawed” because Petitioner was sentenced as a violent sex offender under California's One Strike law, Cal Pen. Code § 667.61, not as a recidivist under California's Three Strikes law, Cal. Pen. Code § 667(b)-(i). [Id. at 3-5.] Finally, the court found Petitioner's competency-related claims were not cognizable on habeas corpus because those claims were raised and rejected on direct appeal. [Id. at 5.] The next day, March 4, 2016, the Superior Court denied Petitioner's second motion to modify his sentence by reducing the restitution fine, ruling it did not have jurisdiction to modify the sentence because more than 120 days had passed since sentencing, and that Petitioner waived his right to challenge the restitution fine by failing to object at sentencing. [Lod. No. 8.]

         On March 28, 2016, Petitioner filed a notice of appeal in the California Court of Appeal, challenging the Superior Court's denial of his motion to modify his sentence. [Lod. No. 9 at 2.] Two days later, on March 30, 2016, he also filed a notice of appeal of the Superior Court's denial of his habeas petition. [Lod. No. 10.] On April 7, 2016, the Court of Appeal addressed Petitioner's notice of Appeal relating to the habeas petition, construing the filing as a petition for writ of habeas corpus and denying habeas relief. [Lod. No. 11.] The following day, April 8, 2016, the Court of Appeal addressed Petitioner's attempt to appeal the Superior Court's denial of his second motion to modify his sentence, finding the order was not appealable and dismissing the appeal. [Lod. No. 15.]

         On April 25, 2016, Petitioner filed a habeas petition in the California Supreme Court, raising the same claims that he raised in the habeas petitions filed in the lower state courts. [Lod. No. 13.] Thereafter, on May 10, 2016, Petitioner also filed a petition for review with the California Supreme Court, raising identical claims. [Lod. No. 14.] The California Supreme Court denied the petition for review on June 15, 2016, and on June 22, 2016, it denied the habeas petition, without comment or citation to authority. [Lod. Nos. 15 & 16.]

         On July 6, 2016, Petitioner constructively filed the present Petition, raising the same claims that he raised in his state habeas petitions.[1]

         II. Discussion

         The AEDPA's one-year statute of limitations applies to Petitioner's federal habeas corpus claims. Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir. 1997), as amended on denial of rhg. and rhg. en banc, cert. denied, 522 U.S. 1099 (1998), overruled on other grounds in Calderon v. U.S. District Court, 163 F.3d 530 (9th Cir. 1998), cert. denied, 523 U.S. 1063 (1999). Pursuant to 28 U.S.C. § 2244(d)(1):

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 ...

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