United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order Denying Respondent's Motion to
Dismiss Without Prejudice and Requiring Briefing on the
Merits [Dkt. 12]
Garey Lee Smith (“Petitioner”) has filed a
pro se Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2254.
Respondent filed a Motion to Dismiss (“Motion”)
arguing the Petition is untimely. Petitioner filed an
Opposition (“Opposition”). For the reasons stated
below, the Court DENIES Respondent's Motion without
10, 2012, after a jury trial, Petitioner was convicted of
first degree murder with use of a deadly weapon in Riverside
County Superior Court (“Superior Court”). ECF
Docket No. (“Dkt.”) 1 at 2; Lodg. 1, Abstract of
Judgment. On June 13, 2012, Petitioner was sentenced
to a total term of fifty years to life in state prison.
filed a direct appeal in the California Court of Appeal
(“Court of Appeal”). Lodg. 2. On April 8, 2014,
the Court of Appeal affirmed Petitioner's conviction in a
reasoned decision. Lodg. 5.
filed a petition for review in the California Supreme Court.
Lodg. 6. On July 16, 2014, the California Supreme Court
denied review. Lodg. 7.
October 26, 2017, Petitioner constructively filed a state
petition for writ of habeas corpus (“First Habeas
Petition”) in the Superior Court. Lodg. 8. Petitioner
explained his mental health prevented him from filing the
First Habeas Petition earlier. Id. at 24. Petitioner
also explained he had only recently received his case file
from his trial counsel containing “more than one
thousand pages of [Petitioner's] mental health records
that had been previously withheld from him.”
Id. On November 21, 2017, the Superior Court denied
the First Habeas Petition for failure “to state a prima
facie factual case supporting the petitioner's
release” and failure “to establish
prejudice.” Lodg. 9.
January 17, 2018, Petitioner constructively filed a state
petition for writ of habeas corpus in the Court of Appeal
(“Second Habeas Petition”). Lodg. 10. Petitioner
again explained the delay in filing was due to his mental
health and the quantity of records he had recently received
from his trial counsel. Id. at 29. On April 16,
2018, the Court of Appeal summarily denied the Second Habeas
Petition. Lodg. 11.
16, 2018, Petitioner constructively filed a state habeas
petition in the California Supreme Court (“Third Habeas
Petition”). Lodg. 12. Petitioner again explained the
delay in filing was due to his mental health and the quantity
of records he had recently received from his trial counsel.
Id. at 49. On January 16, 2019, the California
Supreme Court denied the Third Habeas Petition. Lodg. 13.
February 10, 2019, Petitioner constructively filed the
instant Petition. Dkt. 1, Pet. On April 24, 2019, Respondent
filed the instant Motion arguing the Petition is untimely by
over three years and Petitioner is not entitled to equitable
tolling. Dkt. 12, Mot. On May 23, 2019, Petitioner filed an
Opposition. Dkt. 17. The matter thus stands submitted.
THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR LIMITATIONS
filed the Petition after April 24, 1996, the effective date
of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). See Pet. at 8. Therefore, the
requirements for habeas relief set forth in AEDPA apply.
Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014).
AEDPA “sets a one-year limitations period in which a
state prisoner must file a federal habeas corpus
petition.” Thompson v. Lea, 681 F.3d 1093,
1093 (9th Cir. 2012) (citation omitted). Ordinarily, the
limitations period runs from the date on which the
prisoner's judgment of conviction “became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” 28 U.S.C. § 2244(d)(1)
(“Section 2244(d)(1)”). “When, on direct
appeal, review is sought in the state's highest court but
no petition for certiorari to the United States
Supreme Court is filed, ...