Montano v. Spearman

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner, a state prisoner proceeding through counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c).

         Petitioner was convicted of several counts of attempted murder on an aiding and abetting theory, including one count of attempted murder of a police officer, and was ultimately sentenced to 42 years to life imprisonment. Respondent has filed a motion to dismiss based on expiration of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year statute of limitations. ECF No. 8. Petitioner does not contest that the statutory limitations period had expired, prior to the filing of the federal petition, but opposes the motion based solely on his claim of actual innocence.

         Although respondent errs in the analysis of statutory tolling, the mistake is immaterial as petitioner waited over a year from the denial of his state supreme court habeas petition to the filing of the federal petition. Petitioner, understanding that this petition would be otherwise barred by the AEDPA limitations period, claims that but for the constitutional due process error in the admission of inadmissible and highly prejudicial gang evidence, he would have not been convicted of the attempted murders as an aider and abettor. Therefore, the argument continues - he is “actually innocent” of the attempted murders. Petitioner mistakes a colorable legal claim in habeas corpus for a claim of actual (factual) innocence. The lack of a colorable assertion of actual innocence requires dismissal of this habeas petition.

         Procedural Background

         Because petitioner does not contest the fact that without a viable claim for actual innocence, this action is barred by the AEDPA limitations period, the undersigned will move quickly through the essential procedural facts. Moreover, discussion of the evolution of the prejudicial evidence claim will be set forth in the actual innocence section.

         No dispute is made concerning the finality date of petitioner's conviction for AEDPA purposes-that date is November 29, 2016.^[1] Without statutory tolling, the AEDPA limitations date would expire on November 29, 2017. Petitioner's first collateral review petition, in which the prejudicial evidence claim was initially made, was filed in Superior Court on May 25, 2017. ECF No. 9-4. The petition was denied on July 21, 2017 on a procedural default basis of a Dixon bar-the claim should have been raised on direct appeal-and on the merits. ECF No. 9-5. The Court of Appeal petition, filed October 27, 2017, was denied without explanation on November 2, 2017. ECF Nos. 9-6, 9-7. The state supreme court petition, filed November 8, 2017, was denied on January 17, 2018, also without explanation. ECF Nos. 9-8, 9-9. Therefore, it is presumed that the latter two petitions were denied for the reasons set forth in the Superior Court petition. Wilson v. Sellers, 138 S.Ct. 1188 (2018); Ylst v. Nunnemaker, 501 U.S. 797 (1991). It is significant to note that none of the state habeas petitions were denied for having been untimely filed under state law. The instant federal habeas petition was filed on April 17, 2019.

         AEDPA Limitations Calculation

         A petitioner must file a federal petition for habeas corpus within one year of the finality of the conviction (or three other specified times not applicable here). 28 U.S.C. § 2244 (d)(1)(A). This one-year period can be tolled for reasons of statutory tolling, id. at (d)(2), or equitable tolling (not requested here). Without getting into all the complexities of statutory tolling, a petitioner is entitled to have the AEDPA limitations period tolled during the actual pendency of a state petition, and the gaps of time between the filing of state petitions-if the periods of time between filings in the state court are “reasonable lengths” of time (generally no more than 60 days, described as “gap tolling.”). See Evans v. Chavis, 546 U.S. 189 (2006).

         However, if a state court petition is denied for being untimely, it is not “properly filed” for tolling purposes. Pace v. DiGuglielmo, 544 U.S. 414, 417 (2005). Hence, the pendency of that petition for AEDPA statutory tolling purposes, including gap tolling, is as if the petition(s) had never been filed. Much of the time, the inability to validly assert any tolling will render the petition filed in federal court untimely.

         Respondent asserts that petitioner is not entitled to statutory tolling after the denial of the Superior Court petition because the latter two state petitions were untimely filed. However, respondent conflates the principles of federal gap tolling (the periods of time between the filing of state petitions must be reasonable-with an express finding by a state court that the state petitions were untimely filed under state law). See Walker v. Martin, 562 U.S. 307 (2011) (discussing In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750 (1993), setting forth timeliness standards, including discretionary exceptions, under state law). The necessity of a finding by the state courts that a filing is untimely in order to raise the Pace “not properly filed” holding is well illustrated in Bonner v. Carey, 425 F.3d 1145, 1149 (2005) (emphasis added): “Under Pace, if a state court denies a petition as untimely, none of the time before or during the court's consideration of that petition is statutorily tolled.” It is not up to the federal courts to determine in the first instance whether an untimely filing occurred under state law with respect to state habeas petitions. The federal court may only determine whether the gaps between filings were unreasonably delayed for purposes of the federal tolling analysis.

         The practical effect between the two principles can sometimes be the life or death of a federal habeas petition. In a situation where a Superior Court habeas petition is found untimely filed, by reason of an explained state court order stating thus, followed by the higher courts implied acceptance of the lower court's reasoning through unexplained denials of its habeas petitions, none of the time during actual pendency of state petitions, and none of the time between filings in state court, can count for statutory tolling because all courts have found the petitions untimely filed. However, absent at least one explained determination of untimeliness by the state courts, the actual pendency of the state petitions does count for statutory tolling; it is only the gaps between filings which may be excluded from the statutory tolling. Clearly, what may be the limitations death knell in the former example, where none of the time counts for tolling, may ultimately not matter in the latter-at least the time of actual petition pendency during the state court process in the latter scenario will count for tolling.

         Again, here, no state petition was denied on the grounds of its being untimely under state law; all the state petitions were “properly filed;” the federal court cannot substitute its own ruling to the contrary, effectively overruling the state courts. Respondent has incorrectly asserted that petitioner is not entitled to any statutory tolling after the denial of the Superior Court petition due to the unreasonably delayed state filing of the Court of Appeal petition because none of the petitions thereafter were properly filed. Although the undersigned need not specifically analyze for reasonableness that discrete “gap”-90 day plus period-because petitioner does not contest the unreasonableness of the delay in filing, the actual pendency of the Court of Appeal petition, the reasonable gap between that decision and the filing of the state supreme court petition, and the pendency itself before the California Supreme Court will count for AEDPA statutory tolling.

         Thus, the correct calculation of the expiration of the AEDPA limitations is as follows.

         1. As briefed by respondent, 176 days expired between the finality of the conviction and the filing of the first state habeas petition on May 25, 2017 (no tolling is permitted prior to the filing of the first state habeas petition). However, all parties agree that the AEDPA limitations period was tolled from May 25, 2017 until July 21, 2017 when the Superior Court petition was denied. Thus, 176 days had expired and only 189 days of the AEDPA one-year limitations period remained as of July 21, 2017.

         2. The Court of Appeal petition (filed October 27, 2017) was properly filed because the appellate court did not find that the petition was untimely under state law. Indeed, the Court of Appeal is presumed to have adopted the rationale of the Superior Court decision which had nothing to do with timeliness. Therefore, the actual pendency of the appellate petition (October 27, 2017 to November 2, 2017)-6 days-was statutorily tolled. However, the period of time between the denial of the Superior Court petition and the filing of the appellate court petition (97 days) was unreasonable for federal gap tolling purposes, ^[2] and, therefore, the gap time of 97 days does not ...