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McKinney v. Montgomery

United States District Court, E.D. California

April 2, 2018

ALONZO McKINNEY, Petitioner,
v.
WARREN L. MONTGOMERY, [1] Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Petitioner, a frequent habeas corpus petitioner in this district, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pending before the court is respondent's motion to dismiss on the ground that petitioner is barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d). ECF No. 22. Petitioner has filed an opposition, ECF No. 24, to which respondent has filed a reply. ECF No. 26. Petitioner has also filed a sur-reply. ECF No. 27.

         Upon review of the petition, petitioner seems to seek relief from judgment of more than one state court judgment- petitioner's 2003 conviction and the later resentencing petition. See ECF No. 1. Rule 2(e) of the Rules Governing § 2254 Cases states that “[a] petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.” The court finds, however, that even if petitioner were to properly bring the petitions separately as required, dismissal would be warranted based on issues of timeliness and a failure to state a cognizable claim. Moreover, certain case law treats the resentencing proceeding as simply collateral review of the initial judgment. See infra. In an abundance of caution, the undersigned will address both in this Findings and Recommendations.

         Respondent brings its motion to dismiss entirely on the statute of limitations, both as to the 2003 conviction and the much later resentencing proceedings. There is no doubt that review of the 2003 conviction itself is time barred. Although respondent's motion to dismiss does not address whether the petition should be dismissed for failure to state a cognizable claim as well, the court will address the successive nature of the petition and, in the alternative, the merits, insofar as this petition relates to his 2015 resentencing claim. Title 28 U.S.C. section 2244 (b)(1) prohibits the filing of successive petitions. Finally, Rule 4 of the Rules Governing Section 2254 Cases provides, in pertinent part: “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” The Advisory Committee Notes to Rule 8 of those same rules indicate that the court may deny a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petitioner has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). Accordingly, the court will recommend a dismissal based on the successive nature of the resentencing, or in the alternative, reach the merits of the resentencing petition, and recommend a summary denial.[2]

         Procedural Background

         Direct Review

         On March 11, 2003, petitioner entered a guilty plea to battery by an inmate on a non-confined person in Lassen County Superior Court. Resp't's Lodg. Doc. Nos. 1, 2. Petitioner was sentenced to an indeterminate sentence of two years to be served consecutively to his current term. Id. On November 18, 2003, the California Court of Appeal, Third Appellate District affirmed the judgement. Resp't's Lodg. Doc. No. 2. Petitioner did not seek review in the California Supreme Court.[3]

         Post-Conviction Collateral Review

         On August 16, 2004, petitioner filed a federal habeas petition challenging his 2003 conviction, which the undersigned recommended dismissal for lack of exhaustion. Resp't's Lodg. Doc. Nos. 27, 28 (Findings and Recommendations), 29 (Order Adopting the Findings and Recommendations in Full).

         Thereafter, petitioner filed seven state habeas petitions. The first petition was filed in Lassen County Superior Court on July 19, 2008, and denied on August 15, 2008. Resp't's Lodg. Doc. Nos. 5, 6. The second petition was filed in the Superior Court on March 11, 2013, and denied on May 2, 2013. Resp't's Lodg. Doc. Nos. 7, 8. The third petition was also filed in the Superior Court on May 7, 2013, and denied on July 10, 2013. Resp't's Lodg. Doc. Nos. 9, 10. Petitioner filed his fourth petition in the California Court of Appeal, Third Appellate District on May 15, 2013, and was denied on June 13, 2013. Resp't's Lodg. Doc. Nos. 11, 12. The fifth petition was filed in the California Court of Appeal, Third Appellate District on August 13, 2013, and denied on August 29, 2013. Resp't's Lodg. Doc. Nos. 13, 14. The sixth petition was filed in the California Supreme Court on September 10, 2013, and denied on October 16, 2013. Resp't's Lodg. Doc. Nos. 15, 16. The seventh petition was filed in the California Court of Appeal, Third Appellate District on February 24, 2015, and denied on March 19, 2015. Resp't's Lodg. Doc. Nos. 17, 18.

         Resentencing Petition

         On October 20, 2015, petitioner filed a petition for resentencing pursuant to Proposition 47 (Pen. Code § 1170.18) in Lassen County Superior Court. Resp't's Lodg. Doc. No. 19. The Superior Court found petitioner ineligible for resentencing under Proposition 47 on December 16, 2015. Resp't's Lodg. Doc. No. 20. Petitioner appealed to the California Court of Appeal on January 28, 2016, which affirmed the resentencing judgment on October 17, 2016. Resp't's Lodg. Doc. Nos. 23, 24. See also People v. McKinney, 2016 WL 6068207 (Cal.App. 2016). Petitioner filed for review in the California Supreme Court on October 26, 2016, and was denied on December 21, 2016. Resp't's Lodg. Doc. Nos. 25, 26. More will be said on these proceedings, infra.

         Adding to all the confusion here, petitioner also made direct review appeals of other resentencing proceedings, see People v. McKinney, 2016 WL 447054 (Cal.App. 2016), People v. McKinney, 2017 WL 5248193 (Cal.App. 2017), but those proceedings are irrelevant to the petition before this court.

         This instant action was filed on March 17, 2017.[4]

         Discussion

         A. Statute of limitations

         On April 24, 1986, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year statute of limitations for federal habeas corpus petitions. 28 U.S.C. §2244(d)(1) provides, in pertinent part:

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 ...

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