United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
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.
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).) 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.)
did not appeal her conviction.
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.)
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.)
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.
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.)
March 2, 2017, respondent moved to dismiss the petition as
untimely. (ECF No. 30.) The court considers respondent's
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.
Standards for Motion to Dismiss
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.
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)).
Statute of Limitations
habeas statute's one-year statute of limitations
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 ...