United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding through counsel.
Respondent's motion to dismiss this action as barred by
the statute of limitations is set for hearing before the
undersigned on July 13, 2017. Respondent has accurately
identified the core issue in the reply: “The
battleground is the . . . interval between the denial of
petitioner's third petition in the state trial court and
the filing of his fourth petition in the state court of
appeal.” (ECF No. 31 at 1.) As explained below, the
hearing is vacated inasmuch as further briefing on such issue
opposition to the motion to dismiss, petitioner submitted
evidence that he was deprived of all his personal property,
including legal materials, from October 22, 2015, until
January 15, 2016. Moreover, in reply, respondent provided
petitioner's bed assignment log. However, in the reply,
respondent also argues, for the first time, that this court
is constrained to consider only the facts and evidence
petitioner submitted to the California Court of Appeal in
petitioner's fourth petition. (ECF No. 31 at 3-5.)
Respondent points out that in the fourth state court
petition, in response to the form petition question 15:
“Explain any delay in the discovery of the claimed
grounds for relief and in raising the claims in this
petition, ” petitioner stated: “Petitioner does
not believe that the instant petition constitutes a delay. It
has been brought as soon as possible after denial.”
(ECF No. 31 at 5, citing Respondent's Lodged Document 11
at form p. 6 of 6.) Respondent contends that petitioner may
not now rely on new reasons or evidence not submitted to the
state court with his fourth petition. Because this argument
was made in the reply, petitioner was deprived of an
opportunity to address the argument.
respondent places a petitioner on notice that a federal
petition is subject to dismissal as untimely, petitioner has
the burden of demonstrating that he is entitled to tolling.
Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir.
2002). California law places on a petitioner the burden of
initially demonstrating that a petition is filed within a
reasonable time. In re Clark, 21 Cal.Rptr.2d 509,
518 (Cal. 1993).
the California Court of Appeal denied the fourth petition
without comment or citation. (Respondent's Lodged
Supreme Court requires that lower federal courts determine
reasonableness as would California's courts. Evans v.
Chavis, 546 U.S. 189, 198 (2006). Under California law,
a habeas petition is timely only if filed within a
“reasonable time.” See id., 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.
federal habeas court must determine timeliness when there is
no clear indication by the state court.” Maxwell v.
Roe, 628 F.3d 486, 496 (9th Cir. 2010). In doing so, the
court looks at (1) whether the state court considered the
petition on the merits, and (2) whether petitioner provided
the state court with an explanation for the delay.
Id. California requires habeas petitioners to
“‘file a petition without substantial delay, or
if delayed, adequately explain the delay.'”
Chaffer v. Prosper, 542 F.3d 662, 666 (9th Cir.
2008) (quoting In re Crockett, 159 Cal.App.4th 751,
757, 71 Cal.Rptr.3d 632 (2008)). According to the California
Petitioner has the burden of establishing the
absence of “substantial delay.” Substantial delay
is measured from the time the petitioner or counsel knew, or
reasonably should have known, of the information offered in
support of the claim and the legal basis for the claim. If a
petitioner fails to allege particulars from which we may
determine when the petitioner or counsel knew, or reasonably
should have known, of the information offered in support of
the claim and the legal basis for the claim, he or she has
failed to carry the petitioner's burden of establishing
that the claim was filed without substantial delay.
A petitioner does not meet his or her burden simply by
alleging in general terms that the claim or subclaim recently
was discovered, or by producing a declaration from present or
former counsel to that general effect. He or she must allege,
with specificity, facts showing when information
offered in support of the claim was obtained, and that the
information neither was known, nor reasonably should have
been known, at any earlier time-and he or she bears the
burden of establishing, through those specific allegations .
. . absence of substantial delay.
In re Robbins, 18 Cal.4th 770, 787, 77 Cal.Rptr.2d
153, 959 P.2d 311 (1998).
petitioner was not provided an opportunity to address
petitioner's argument, the July 13, 2017 hearing is
vacated. Petitioner is granted thirty days in which to file a
sur-reply to respondent's reply (ECF No. 31 at 3-5).
Respondent may file a response within fourteen days
thereafter. At that time, the motion will stand submitted.
IT IS HEREBY ORDERED that:
1. The July 13, 2017 hearing is vacated; and
2. Within thirty days from the date of this order, petitioner
shall file a sur-reply addressing respondent's argument.
Respondent may file ...