Davis v. Kernan

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se in this federal habeas corpus action filed pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss petitioner's federal habeas corpus application on the basis that it is barred by the statute of limitations. ECF No. 8. Petitioner has filed an opposition to the motion. See ECF No. 26. For the reasons discussed below, the court recommends that the motion to dismiss be granted and petitioner's application for federal habeas corpus relief be dismissed with prejudice as time barred.

         I. Factual and Procedural History

         Petitioner was convicted of assault with a firearm and battery with serious bodily injury following a jury trial in the Solano County Superior Court. Based on sentencing enhancements for inflicting great bodily injury and the personal use of a firearm, petitioner was sentenced to 10 years in prison on December 18, 2013. The California Court of Appeal affirmed petitioner's conviction on June 27, 2016. See ECF No. 18-1. Petitioner did not file a petition for review in the California Supreme Court.

         The instant federal habeas corpus petition was filed on July 16, 2018 using the prison mailbox rule. See ECF No. 1 at 13; Houston v. Lack, 487 U.S. 266 (1988) (establishing the prison mailbox rule to determine the filing date for pleadings filed by inmates). Before the court could screen this habeas application, petitioner filed a first amended § 2254 petition on July 23, 2018 which was ordered served on respondent on July 30, 2018. In his amended federal habeas application, petitioner raises three claims for relief. He first asserts that the sentencing court gave him credits on the actual days served in custody, but failed to award him conduct credits. ECF No. 3 at 8. He next alleges that he received ineffective assistance of counsel based on his attorney's failure to object to the trial court's order of presentence credits. ECF No. 3 at 9. Lastly, “[p]etitioner request[s] an ex parte motion for an order correcting pre-sentence custody credits (nunc pro tunc) under Penal Code § 4019. ECF No. 3 at 12.

         On December 20, 2018, respondent filed a motion to dismiss petitioner's § 2254 petition on two separate and independent grounds. ECF No. 18. Respondent first asserts that petitioner's habeas application is time barred because the statute of limitations expired on August 6, 2017 and petitioner's federal habeas application was not filed until July 16, 2018. ECF No. 18. Therefore, according to respondent's calculation, the instant federal habeas petition was filed almost one year late and should be dismissed with prejudice. Id. at 2-3. Alternatively, respondent asserts that petitioner's federal habeas claims are unexhausted since he failed to present them either on direct or collateral review to the California Supreme Court. ECF No. 18 at 3-4. As a result, the claims should be dismissed. Id. at 4.^[1]

         Following two extensions of time, petitioner filed a voluminous opposition to respondent's motion to dismiss. ECF No. 26. Petitioner's opposition is a scattershot pleading consisting mainly of random exhibits including medical records from 2010, petitioner's edited criminal history, sporadic excerpts from the trial transcripts, state sentencing laws, new allegations that petitioner's trial counsel was ineffective, the court reporter's certifications of the trial transcript, and CDCR disability accommodations for petitioner who is deaf and mobility impaired. See ECF No. 26 at 3-151.

         Liberally construing petitioner's filings he appears to request equitable tolling on the basis that his appellate attorney abandoned him by not filing a petition for review in the California Supreme Court.^[2] See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (applying the liberal construction rule to pro se habeas pleadings). In support thereof, petitioner submitted a letter from his appellate lawyer dated July 5, 2016 indicating that she “will certainly file a petition for review… by August 5, 2016 and you will receive a copy of it.” ECF No. 26 at 70. However, petitioner also submitted a subsequent letter from appellate counsel dated July 26, 2018 explaining that in her opinion “a petition to the [California] Supreme Court would be futile.” ECF No. 13 at 49. In this same letter, appellate counsel informs petitioner of the deadline for filing a petition for review in the California Supreme Court as well as the procedure for filing one complete round of state habeas review. ECF No. 13 at 50. More importantly, appellate counsel also explained the general rules regarding the timeliness of filing a federal habeas petition. Id. In response to petitioner's complaints that appellate counsel abruptly stopped his appeal and sent him his transcripts, petitioner was also provided “a writ of habeas corpus petition form with instructions for your ineffective assistance of counsel claim” from the First District Appellate Project on or about March 1, 2017. ECF No. 13 at 48.

         II. Legal Standards

         A. Statute of Limitations

         Section 2244(d) (1) of Title 28 of the United States Code contains a one-year statute of limitations for filing a habeas petition in federal court. The one-year clock commences from several alternative triggering dates which are described as:

“(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 ... 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 ... and made retroactively ...