United States District Court, E.D. California
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 ...