United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent's motion to
dismiss (Doc. 12), petitioner's opposition (Doc. 15), and
respondent's reply (Doc. 18). Petitioner also filed
additional exhibits in support of his opposition (Doc. 22).
is challenging his 2009 conviction out of the Colusa County
Superior Court. His conviction was affirmed by the California
Court of Appeal in June 2011, and the California Supreme
Court denied review on September 14, 2011. Petitioner
filed a state habeas petition in the Colusa
County Superior Court on April 17, 2014, which was denied on
July 25, 2014. He then filed a petition in the California
Court of Appeal on October 23, 2014, which was denied on
October 28, 2014. He filed his petition in the California
Supreme Court on December 22, 2014, which was denied June 10,
2015. In addition, prior to filing his habeas petition in the
California Supreme Court, he filed a motion for
reconsideration in the Colusa County Superior Court on
November 4, 2014, which was denied on December 10, 2014.
Finally, he filed his current petition in this court on March
MOTION TO DISMISS
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254 Cases. The Ninth
Circuit has allowed respondents to file a motion to dismiss
in lieu of an answer if the motion attacks the pleadings for
failing to exhaust state remedies or being in violation of
the state's procedural rules. See, e.g.,
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990) (using Rule 4 to evaluate motion to dismiss petition
for failure to exhaust state remedies); White v.
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule
4 as procedural grounds to review motion to dismiss for state
procedural default); Hillery v. Pulley, 533 F.Supp.
1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a
respondent can file a motion to dismiss after the court
orders a response, and the Court should use Rule 4 standards
to review the motion. See Hillery, 533 F.Supp. at
1194 & n.12. The petitioner bears the burden of showing
that he has exhausted state remedies. See Cartwright v.
Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
brings this motion to dismiss petitioner's habeas corpus
petition as filed beyond the one-year statute of limitations,
pursuant to 28 U.S.C. § 2244(d). Petitioner agues the
merits of his petition should be heard and asserts that he
should be granted equitable tolling.
Antiterrorism and Effective Death Penalty Act (AEDPA)
requires federal habeas corpus petitions to be filed within
one year from the later of: (1) the date the state court
judgment became final; (2) the date on which an impediment to
filing created by state action is removed; (3) the date on
which a constitutional right is newly-recognized and made
retroactive on collateral review; or (4) the date on which
the factual predicate of the claim could have been discovered
through the exercise of due diligence. See 28 U.S.C.
§ 2244(d). Typically, the statute of limitations will
begin to run when the state court judgment becomes final by
the conclusion of direct review or expiration of the time to
seek direct review. See 28 U.S.C. § 2244(d)(1).
petition for review by the California Supreme Court is filed
and no petition for certiorari is filed in the United States
Supreme Court, the one-year limitations period begins running
the day after expiration of the 90-day time within which to
seek review by the United States Supreme Court. See
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.
2001). Where a petition for writ of certiorari is filed in
the United States Supreme Court, the one-year limitations
period begins to run the day after certiorari is denied or
the Court issued a merits decision. See Wixom v.
Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no
petition for review by the California Supreme Court is filed,
the conviction becomes final 40 days following the Court of
Appeal's decision, and the limitations period begins
running the following day. See Smith v. Duncan, 297
F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court
of Appeal, the conviction becomes final 60 days after
conclusion of proceedings in the state trial court, and the
limitations period begins running the following day. If the
conviction became final before April 24, 1996 - the effective
date of the statute of limitations - the one-year period
begins to run the day after the effective date, or April 25,
1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th
limitations period is tolled, however, for the time a
properly filed application for post-conviction relief is
pending in the state court. See 28 U.S.C. §
2244(d)(2). To be “properly filed, ” the
application must be authorized by, and in compliance with,
state law. See Artuz v. Bennett, 531 U.S. 4 (2000);
see also Allen v. Siebert, 552 U.S. 3 (2007);
Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding
that, regardless of whether there are exceptions to a
state's timeliness bar, time limits for filing a state
post-conviction petition are filing conditions and the
failure to comply with those time limits precludes a finding
that the state petition is properly filed). A state court
application for post-conviction relief is
“pending”during all the time the petitioner is
attempting, through proper use of state court procedures, to
present his claims. See Nino v. Galaza, 183 F.3d
1003, 1006 (9th Cir. 1999). It is not, however, considered
“pending” after the state post-conviction process
is concluded. See Lawrence v. Florida, 549 U.S. 327
(2007) (holding that federal habeas petition not tolled for
time during which certiorari petition to the Supreme Court
was pending). Where the petitioner unreasonably delays
between state court applications, however, there is no
tolling for that period of time. See Carey v.
Saffold, 536 U.S. 214 (2002). If the state court does
not explicitly deny a post-conviction application as
untimely, the federal court must independently determine
whether there was undue delay. See Id. at 226-27.
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
Evans v. Chavis, 546 U.S. 189, 199 (2006)).
is no tolling for the interval of time between
post-conviction applications where the petitioner is not
moving to the next higher appellate level of review. See
Nino, 183 F.3d at 1006-07; see also Dils v.
Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also
no tolling for the period between different sets of
post-conviction applications. See Biggs v. Duncan,
339 F.3d 1045 (9th Cir. 2003). Finally, the period between
the conclusion of direct review and the filing of a state
post-conviction application does not toll the limitations
period. See Nino, 1983 F.3d at 1006-07.
petitioner is challenging his 2009 conviction. Petitioner
appealed his conviction to the California Court of Appeal,
which affirmed his conviction in June 2011. The California
Supreme Court denied review on September 14, 2011. As no
petition for certiorari was filed, the statute of limitations
commenced after the 90 day period of time for filing a
petition for writ of certiorari, or December 14, 2011. The
statute of limitations expired one year later, on December
did not file his first state habeas petition until April 17,
2014, a year and a half after the statute of limitations
expired. As the habeas petitions were not filed within the
statute of limitations period, petitioner is not entitled to
any statutory tolling. His federal habeas petition was not
filed until March 9, 2016, three and a half years after the
statute of limitations expired. Therefore, without equitable
tolling, petitioner's federal habeas petition is untimely
and barred by the statute of limitations.
Supreme Court has determined the statute of limitations under
28 U.S.C. § 2244(d) is subject to equitable tolling
principles. See Holland v. Florida, 560 U.S. 631,
645 (2010). To be entitled to equitable tolling, the
petitioner must demonstrate that: (1) he has been diligent in
pursuing his rights; and (2) extraordinary circumstances
prevented him from filing on time. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). In a case where
the petitioner is alleging a mental impairment as the basis
for his equitable tolling claim, “the petitioner must
meet a two-part test:
(1) First, a petitioner must show his mental impairment was
an ‘extraordinary circumstance' beyond his control
by demonstrating the ...