Sagapolu v. Burton

          ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY; DENYING CERTIFICATE OF APPEALABILITY RE: DKT. NO. 12

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE.

         Petitioner Cecil Sagapolu, an inmate at Deuel Vocational Institution, ^[1] in Tracy, California, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction and sentence from Alameda County Superior Court. Pending before the Court is respondent's Motion to Dismiss the Petition. Dkt. No. 12. Petitioner has filed an opposition, Dkt. No. 15, and respondent has filed a reply, Dkt. No. 16. For the reasons set forth below, the Court GRANTS respondent's motion to dismiss.

         BACKGROUND

         On March 1, 2012, an Alameda County jury found Petitioner guilty of second degree murder (count one) and illegal possession of a firearm by a felon (count 2). Dkt. No. 12-1 at 4. The jury also found true the enhancement for personal use of a firearm. Dkt. No. 12-1 at 4. The state court sentenced petitioner to an indeterminate term of fifteen years to life in prison on count one, with a consecutive ten year term for the enhancement. The state court sentenced petitioner to three years in prison on count two, but stayed the sentence pursuant to Cal. Penal Code § 654. Dkt. No. 12-1 at 4-5. Petitioner appealed the conviction and simultaneously filed a separate petition for a writ of habeas corpus. Dkt. No. 12-1 at 5 and 16. In his appeal, petitioner alleged that he was deprived of effective assistance of counsel because defense counsel (1) failed to raise an objection to a question of an expert witness; (2) failed to counter the prosecutor's argument that it would have been difficult for the witness to shoot herself; and (3) failed to mention “reasonable doubt” during closing argument. Dkt. No. 12-1 at 3-18. In his habeas petition, petitioner raised the same issues but also sought an evidentiary hearing regarding trial counsel's omissions. Dkt. No. 12-1 at 3. On October 24, 2014, the state appellate court affirmed the conviction, denying the ineffective assistance of counsel claims on the merits, and denied the state habeas petition in a separate order. Dkt. No. 12-1 at 3-18. On September 2, 2014, petitioner submitted a petition for review raising the same claims to the California Supreme Court, which was denied on January 14, 2015. Dkt. No. 12-1 at 20-38.

         On September 9, 2015, petitioner initiated a second round of collateral proceedings in the state court, filing a petition for a writ of habeas corpus in Alameda County Superior Court raising the following grounds for relief: (1) trial counsel was ineffective when he failed to seek suppression of petitioner's statement to the police, failed to counter Dr. Beaver's testimony by calling an expert on the behavioral and psychological impact of methamphetamine use, failed to have the jury properly instructed on causation, failed to prevent the jury from having access to petitioner's cellphone during deliberations, failed to have the jury instructed that absence of provocation is an element of murder and also failed to seek a voluntary manslaughter instruction, and cumulative error as a result of these deficiencies; (2) appellate counsel was ineffective when he failed to raise these grounds on appeal and in the prior habeas petition; and (3) petitioner's rights to due process under the Fifth, Sixth, and Fourteenth Amendment were violated when trial counsel failed to seek suppression of his statement to police, failed to correctly instruct the jury, failed to prevent the jury from being exposed to his cellphone, and cumulative error. The Alameda County Superior Court denied this petition on June 22, 2016, denying the claims of ineffective assistance of trial counsel as untimely, citing to In re Clark, 5 Cal.4th 750, 755 (Cal. 1993), In re Sanders, 21 Cal.4th 697, 703 (Cal. 1999), and In re Robbins, 18 Cal.4th 770, 780 (Cal. 1998), and denying these claims on the merits; denying the ineffective assistance of appellate counsel claim on the merits; and denying the due process claim as procedurally barred for failure to exhaust appellate remedies, citing to In re Harris, 5 Cal.4th 813, 823 (Cal. 1993) and In re Dixon, 41 Cal.2d 756, 759 (Cal. 1983). Dkt. No. 12-1 at 40-62. Petitioner filed a petition for a writ of habeas corpus with the California Court of Appeals, which was denied on September 1, 2017 as follows:

A jury convicted petitioner Cecil Sagapolu of second-degree murder in 2012. We affirmed his conviction and sentence in an unpublished opinion filed October 24, 2014 (A135464) and simultaneously denied his first habeas petition (A139895). In this successive petition, Sagapolu raises multiple claims of ineffective assistance of counsel, some of them for the second time.

Having closely reviewed the petition, the Attorney General's detailed response, and petitioner's reply, we conclude petitioner's claims are without merit. In particular, petitioner has failed to show that the issues he claims his appellate counsel should have raised, including those challenging the effectiveness of his trial counsel, are “one[s] that would have entitled the petitioner to relief had [they] been raised and adequately presented in the initial petition, and that counsel's failure to [raise and present these issues] reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants.” (In re Clark (1995) 5 Cal.4th 750, 780.)

The petition for writ of habeas corpus is accordingly DENIED.

Dkt. No. 12-1 at 64. On July 11, 2018, the California Supreme Court summarily denied the petition for a writ of habeas corpus. Dkt. No. 12-1 at 65.

         DISCUSSION

         Respondent has filed a motion to dismiss this petition as untimely, arguing that the instant petition, filed on July 16, 2018, ^[2] is untimely because petitioner's conviction became final on April 14, 2015, and petitioner's second round of state collateral proceedings did not toll the limitations period. Dkt. No. 12. Petitioner argues that the limitations period was tolled because the state courts addressed his second round of habeas petitions on the merits. Dkt. No. 15.

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 24, 1996, and imposed for the first time on state prisoners a one-year statute of limitations for filing federal petitions for a writ of habeas corpus. In relevant part, Section 2244(d)(1)(A) requires state prisoners challenging non-capital state convictions or sentences to file their habeas petitions within one year of the latest of the date on which the judgment became final after the conclusion of direct review or the time passed for seeking direct review. 28 U.S.C. § 2244(d)(1)(A).^[3] The one-year period generally will run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” concludes upon the United States Supreme Court's denial of certiorari review of a state court conviction, or upon the expiration of the time for filing a petition for certiorari review in the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999); see also Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review); Bowen, 188 F.3d at 1159 (same).

         The one-year statute of limitations is tolled under Section 2244(d)(2) for the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A state habeas petition filed before AEDPA's statute of limitations begins to run tolls the limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). A state habeas petition filed after AEDPA's statute of limitations ended cannot toll the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed, ” even if the state petition was timely filed); Jiminez, 276 F.3d at 482 (same).

         An application for collateral review is “pending” in state court for “all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). If the time to file a federal petition has not already expired when a second round of properly filed California habeas petitions begins, the second round of petitions can toll the § 2244(d)(1) period. See Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001).

         The second round of habeas petitions tolls the AEDPA statute of limitations period only if the petition is properly filed. In Artuz v. Bennett, 531 U.S. 4 (2000), Carey v. Saffold, 536 U.S. 214 (2002), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), the United States Supreme Court addressed what “properly filed” means for purposes of Section 2244(d)(2) tolling. In Artuz, the United States Supreme Court determined that “an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz, 531 U.S. at 8. Subsequently, in Carey, the United States Supreme Court held that a petition was not properly filed if the state court issued a clear ruling that the petition was untimely even if the state court also considered the petition on the merits. Specifically, the Carey court considered whether Section 2244(d)(2) required tolling where the California Supreme Court denied the petition both “on the merits and for lack of diligence.” Carey, 536 U.S. at 225. Although the Carey court found that the California Supreme Court's order was unclear and remanded the case to the Ninth Circuit to determine why the California Supreme Court would have considered the merits of the petition if it considered the petition untimely, the Carey court explained that, if the California ...