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Grunwald v. Covello

United States District Court, C.D. California

October 29, 2019

JOSHUA GRUNWALD, Petitioner,
v.
PATRICK COVELLO, Warden, Respondent.

          ORDER TO SHOW CAUSE WHY PETITITION SHOULD NOT BE DISMISSED AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL

          ALEXANDER F. MACKINNON UNITED STATES MAGISTRATE JUDGE

         Petitioner filed this petition for writ of habeas corpus on October 19, 2019.[1]From the face of the petition, it appears to be barred by the one-year period of limitation set forth in the AEDPA. See 28 U.S.C. § 2244(d)(1); see also Day v. McDonough, 547 U.S. 198, 209 (2006) (district court may sua sponte consider the timeliness of a state prisoner's habeas corpus petition).

         The Statute of Limitation

         State prisoners have a one-year statutory period to file a federal application for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). This one-year period commences on the latest of four dates designated by statute:

(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).

         Ordinarily, the statute of limitation begins to run on the date a petitioner's conviction became final. 28 U.S.C. 2244(d)(1)(A). Here, Petitioner was convicted on January 18, 2011 and sentenced on July 11, 2011. (ECF No. 1 at 1.) The California Court of Appeal affirmed his conviction on January 11, 2013 and, on April 10, 2013, the California Supreme Court denied review. (ECF No. 1 at 3.) Petitioner's conviction became final ninety days later - that is, on July 9, 2013 -when the time for filing a petition for a writ of certiorari in the United States Supreme Court elapsed. See Brown v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). Consequently, absent tolling, the one-year limitation period expired one year later on July 9, 2014. Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir. 2001).

         Petitioner does not allege, and nothing suggests, that a state-created impediment prevented him from filing a petition raising his claim nor does his claim rely upon a factual predicate that could not have been discovered earlier with the exercise of due diligence. Thus, neither 28 U.S.C. § 2244(d)(1)(B) nor 28 U.S.C. § 2244(d)(1)(C) apply. However, in light of his reliance on the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013), it is possible that Petitioner contends he is entitled to a later start date under 28 U.S.C. § 2244(d)(1)(C). (See ECF No. 1 at 4, 13-18.)

         In Descamps, the Supreme Court considered when and how a prior state conviction can trigger a harsher sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 922(e), and held that “sentencing courts may not apply the modified categorical approach” to determine whether the prior conviction qualifies as a predicate offense under the ACCA when the prior crime “has a single, indivisible set of elements.” Descamps, 570 U.S. at 258. Even assuming Descamps applies to Petitioner, [2] it does not have any effect on the date the statute of limitation began to run.

         To begin with, Descamps involves statutory interpretation; it did not establish a new rule of constitutional law. See Ezell v. U.S., 778 F.3d 762, 766 (9th Cir. 2015) (“[E]ven if the Supreme Court did announce a new rule in Descamps, that rule is not constitutional.”); Jones v. McGrew, 2014 WL 2002245, *5 (C.D. Cal. May 15, 2014) (Descamps did not announce a new rule of constitutional law). Further, even assuming arguendo that Descamps announced a newly recognized constitutional right, that right has not been made “retroactively applicable to cases on collateral review.” See Brock v. Davis, 2015 WL 11070281, at *4 (C.D. Cal. Aug. 21, 2015) (citing cases), report and recommendation adopted, 2016 WL 3436371 (C.D. Cal. June 15, 2016). As a result, Descamps does not entitle Petitioner to a later starting date under the AEDPA. See Corte Deon Banks v. Sherman, 2019 WL 4749903, at *3 (C.D. Cal. Sept. 30, 2019) (reliance on Descamps did not entitle petitioner to a delayed accrual date under 28 U.S.C. § 2244(d)(1)(C) because Descamps is not a new rule of constitutional law); Depina v. Muniz, 2016 WL 8735719, at *2 (C.D. Cal. Nov. 14, 2016) (same), report and recommendation adopted, 2016 WL 8738145 (C.D. Cal. Dec. 16, 2016).

         Indeed, even if Descamps could trigger a new start date under § 2244(d)(1)(C), it would not help Petitioner. Descamps was decided on June 20, 2013 - prior to the date on which Petitioner's conviction became final (July 9, 2013). Thus, it does not result in a later starting ...


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