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