United States District Court, N.D. California
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
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