United States District Court, C.D. California
JACOB D. WOLF, Petitioner,
ROSEMARY NDOH, Warden, Respondent.
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO
DISMISS AND DISMISSING ACTION WITH PREJUDICE
ROSENBLUTH, U.S. MAGISTRATE JUDGE.
January 25, 2017, Petitioner constructively filed a Petition
for Writ of Habeas Corpus by a Person in State
Custody.On May 3, Respondent moved to dismiss the
Petition, arguing that it is time barred. On May 17,
Petitioner filed opposition. Respondent filed a reply on June
9. On June 15, Petitioner filed a request to amend his
opposition, which the Court has read and considered.
parties consented to the jurisdiction of the undersigned U.S.
Magistrate Judge under 28 U.S.C. § 636(c)(1).
(See Pet'r's Consent to Proceed Before U.S.
Magis. Judge at 1, Feb. 13, 2017; Resp't's Consent to
Proceed Before U.S. Magis. Judge at 1, May 3, 2017.)
reasons discussed below, the Court denies the Petition as
untimely and dismisses this action with prejudice.
pleaded no contest in Los Angeles County Superior Court on
December 12, 2014, to making criminal threats and stalking.
(Pet. at 2; Lodged Doc. 1.) He was sentenced to 12 years and
four months in state prison. (Pet. at 2; Lodged Doc. 1 at 1.)
He filed a motion for a certificate of probable cause in the
superior court on December 22, 2014 (Lodged Doc. 5; Lodged
Doc. 6 at 2-3), which was denied on January 7, 2015 (Lodged
Doc. 6 at 1). Before that, he filed a notice of appeal on
December 30, 2014. (Lodged Doc. 3.) The appeal was dismissed
on April 29, 2015, because Petitioner had not obtained a
certificate of probable cause, as required by Rule 8.304(b)
of the California Rules of Court and Penal Code section
1237.5. (See Lodged Doc. 4 (order to show cause));
Cal.App. Cts. Case Info., http://
visited Nov. 13, 2017) (showing dismissal order filed).
January 29, 2015, an attorney with the California Appellate
Project, unaware of Petitioner's incomplete December 30
notice of appeal, filed a notice of appeal in the superior
court on Petitioner's behalf. (See Lodged Doc. 9
at 28.) It was rejected as a “duplicate” on
February 4, 2015. (See id. at 35-36.) On May 21,
2015, Petitioner filed another notice of appeal and request
for certificate of probable cause in the superior court.
(Lodged Doc. 7 at 4-11.) That court denied his request on
June 2, 2015 (id. at 5, 11), and his notice of
appeal was “not filed” on June 8 because it was
“received after the expiration of the sixty (60) day
period prescribed for filing a notice” (id. at
11). On May 22, 2015, he filed a letter in the superior court
stating that he “need[ed] to withdraw [his] plea and
get back into court.” (Req. to Amend at 12-13.) The
court of appeal construed the letter as a petition for writ
of mandate and request for rehearing, denying both on July 1,
2015, for failure “to state facts sufficient to warrant
relief” or “provide a record adequate for
review.” (Id. at 14.) On June 8, 2015, he
filed a motion for relief from default for filing a late
notice (id. at 1-2), which the court of appeal
construed as a “petition for writ of late notice of
appeal” and denied on August 31 (Lodged Doc. 8). On
August 28, 2015, he filed a petition for a writ of mandate,
which the court of appeal denied on September 28. (Lodged
Doc. 13.) On September 4, 2015, he filed through
counsel a motion for reconsideration of his application for
relief from default (Lodged Doc. 9), which the appellate
court denied on September 8 (Lodged Doc. 10).
constructively filed a habeas petition in the state superior
court on January 5, 2016, raising a single claim, ineffective
assistance of trial counsel. (Lodged Doc. 11 at 3, 21.) He
argued that his counsel was ineffective in two respects:
counsel failed to check certain boxes on his felony
advisement of rights, waiver, and plea form, and thus
“[t]here is nothing . . . that shows [he] waived any of
his constitutional rights” (id. at 3-5); and
counsel failed to “advise[ him] to accept [an] original
plea offer of 4 years or at least to finish his trial so as
to leave intact all of his appeal rights” (id.
February 18, 2016, the superior court denied the petition for
“fail[ure] to state [a] claim upon which relief can be
granted.” (Pet., pt. 3 at 28.) Petitioner
constructively filed a habeas petition in the court of appeal
on April 5, 2016, raising the same claim (Lodged Doc. 14;
see Lodged Doc. 18 at 8); the court summarily denied
it on April 18 (Lodged Doc. 15). On October 11, 2016, now
represented by counsel, Petitioner filed a habeas petition in
the supreme court, adding more detail but still basing his
ineffective-assistance claim on the same arguments and not
raising any other claims. (See Lodged Doc. 16.) The
state supreme court summarily denied the petition on December
14, 2016. (Lodged Doc. 17.)
federal Petition raises the same claim he raised in his state
was deprived of the effective assistance of counsel during
the plea process. (Pet. at 4, 15-17.)
Antiterrorism and Effective Death Penalty Act sets forth a
one-year limitation period for filing a federal habeas
petition and specifies that the period runs from the latest
of the following dates:
(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
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
includes a statutory tolling provision that suspends the
limitation period for the time during which a properly filed
application for postconviction or other collateral review is
pending in state court. § 2244(d)(2); see Waldrip v.
Hall, 548 F.3d 729, 734 (9th Cir. 2008). An application
is “pending” until it has achieved final
resolution through the state's postconviction procedures.
Carey v. Saffold, 536 U.S. 214, 220 (2002). In
California, a state habeas petition remains pending between a
lower court's denial of it and the filing of a habeas
petition in a higher state court as long as that period is
“reasonable.” Evans v. Chavis, 546 U.S.
189, 191-92 (2006). Periods of up to 60 days are generally
presumptively reasonable. Cf. id. at 201 (holding
unexplained six-month delay unreasonable compared to
“short[er] periods of time, ” such as 30 to 60
days, “that most States provide for filing an appeal to
the state supreme court” (citation and alteration
omitted)). Finally, the limitation period is not tolled
between the time a decision becomes final on direct appeal
and when a ...