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Ram v. Sacramento County

United States District Court, E.D. California

June 1, 2017

ANUL MALIK RAM, Petitioner,
v.
SACRAMENTO COUNTY, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges her 2011 pleas of guilty to second degree murder and not guilty by reason of insanity to attempted murder. Petitioner claims: (1) there was no legally sufficient basis for her plea to attempted murder, and (2) counsel was ineffective for failing to challenge the legal sufficiency of that charge. Respondent's motion to dismiss the petition as untimely is before the court. For the reasons set forth below, this court recommends the motion to dismiss be granted.

         BACKGROUND

         In 2009, petitioner was charged with the first degree murder of her three-year-old daughter, with the special circumstance of sexual penetration during the course of the homicide. (See ECF No. 24-2 at 47.) On April 29, 2011, petitioner entered a guilty plea to second degree murder. (Id. at 84.) At the time she entered her plea, the prosecutor amended the information to add a charge of attempted murder of petitioner's seven-year-old son. (Id. at 86.) Petitioner then entered a plea of not guilty by reason of insanity to that newly added count. (Trans. of Change of Plea (LD 1[1]).) On June 11, 2011, the Sacramento County Superior Court sentenced petitioner to a term of fifteen years to life in state prison on the murder count and immediate commitment to Napa State Hospital on the attempted murder count. (LD 3, 4.)

         Petitioner did not appeal her conviction.

         In January 2015, according to petitioner, she regained competency. On June 21, 2015, petitioner, acting in pro per, filed a request with the Court of Appeal for the Third Appellate District for an order permitting the filing of an untimely notice of appeal. The Court of Appeal denied that request. (See ECF No. 24-1 at 5-6.)

         On August 25, 2015, petitioner filed a federal petition for a writ of habeas corpus in the United States District Court for the Central District of California. (ECF No. 1.) On October 2, 2015, the case was transferred to the Eastern District. (ECF Nos. 3, 4.) On April 15, 2016, the court appointed the Federal Defender to represent petitioner. (ECF No. 10.) Shortly thereafter, attorney Marylou Hillberg was substituted for the Federal Defender. (ECF No. 14.)

         On November 20, 2016, petitioner moved to amend the petition. (ECF No. 24.) The court granted that motion and petitioner's first amended petition (ECF No. 24-1) became the operative petition in this proceeding.

         On November 23, 2016, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (See ECF No. 27 at 2.) In that petition, petitioner raised the same claims raised in the first amended petition herein. (See id.) On January 25, 2017, the California Supreme Court denied that petition. (ECF No. 29 at 2.)

         On March 2, 2017, respondent moved to dismiss the petition as untimely. (ECF No. 30.) The court considers respondent's motion below.

         MOTION TO DISMISS

         Respondent argues the claims in the first amended petition are untimely because they do not relate back to the claims in the original petition. Petitioner contends the claims do relate back and, even if they do not, she is excused from the statute of limitations because she is actually innocent of the attempted murder of her son.

         I. Legal Standards

         A. Standards for Motion to Dismiss

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” The Court of Appeals for the Ninth Circuit construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4. See O‘Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Accordingly, the court will review respondent's motion to dismiss pursuant to its authority under Rule 4.

         In ruling on a motion to dismiss, the court “must accept factual allegations in the [petition] as true and construe the pleadings in the light most favorable to the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a pleading are “part of the pleading for all purposes.” Hartmann v. Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013) (quoting Fed.R.Civ.P. 10(c)).

         B. Statute of Limitations

         The habeas statute's one-year statute of limitations provides:

         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 ...

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