United States District Court, C.D. California, Southern Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DOLLY
M. GEE UNITED STATES DISTRICT JUDGE.
On
March 4, 2019, the United States Magistrate Judge issued a
Report and Recommendation (“R&R”),
recommending that respondent's Motion to Dismiss be
granted, and that petitioner's First Amended Petition for
Writ of Habeas Corpus be denied and dismissed with prejudice
as untimely. [Doc. # 22.] On June 26, 2019, petitioner filed
Objections to the R&R. [Doc. # 29.]
The
bulk of the arguments that petitioner makes in his Objections
is sufficiently addressed in the Magistrate Judge's
R&R. A few of his arguments, however, warrant further
discussion. For example, petitioner contends that the
Magistrate Judge erred in finding that petitioner was not
entitled to statutory tolling for any period during which his
third state habeas petition was pending in the California
Supreme Court. [Doc. # 29 at 9.] Petitioner believes that the
Magistrate Judge found that petitioner was entitled to no
statutory tolling during that period because “the [68]
day gap between the court of appeal's denial [of his
second state habeas petition] and petitioner's subsequent
filing of his habeas petition in the [California] Supreme
Court was unreasonable.” Id. This finding was
erroneous, according to petitioner, for several reasons.
First, petitioner notes that the 68-day gap between the
denial of his second state habeas petition and the filing of
his third state habeas petition was only eight days
“over the [36] day ‘benchmark' established by
the United State Supreme Court. . . .” Id.
Second, petitioner maintains that the eight-day delay in
excess of that benchmark was justified by the fact that
petitioner had no access to his property “for [eight]
days while [he] was being transferred” between prisons.
Id. at 10. Third, petitioner asserts that the
Magistrate Judge's finding with respect to the 68-day
delay conflicts with the Magistrate Judge's finding
regarding petitioner's first state habeas petition.
Id. at 13. Specifically, petitioner asserts that the
Magistrate Judge found that petitioner's first state
habeas petition was timely, even though it was not filed
until 363 days of the AEDPA one-year limitations period had
elapsed. Id. Citing this finding, petitioner
concludes that the Magistrate Judge effectively was precluded
from finding that the much shorter 68-day delay between the
denial of petitioner's second state habeas and the filing
of his third state habeas petition was unreasonable.
Id.
These
arguments are meritless because they are premised on a flawed
understanding of the Magistrate Judge's R&R. Contrary
to petitioner's assertions, the Magistrate Judge made no
findings as to the timeliness of either petitioner's
first state habeas petition or his third state habeas
petition. Rather, the Magistrate Judge merely set forth the
findings of the state courts. As to petitioner's first
state habeas petition, the state superior court did not
reject it as untimely, but instead rejected it in a reasoned
opinion. See Lodgment No. 6. As to petitioner's
third state habeas petition, the California Supreme Court
rejected that petition as untimely. Although the Magistrate
Judge analyzed the impact of the state courts' findings
in determining whether and to what extent petitioner was
entitled to statutory tolling, the Magistrate Judge made no
independent findings as to whether any of petitioner's
state court habeas petitions was timely or not.
Moreover,
there is no merit to petitioner's argument that the
Magistrate Judge based his conclusions on the 68-day delay
between the denial of petitioner's second state habeas
petition and the filing of his third state habeas petition.
This argument is, no doubt, premised on the United States
Supreme Court's instruction to lower courts about what is
“reasonable” in terms of the intervals between
the denial of a petition in one state court and the filing of
a subsequent petition in a higher state court for purposes of
gap tolling. Because California has never definitively stated
what is “reasonable” in terms of such intervals,
the Supreme Court has instructed lower courts to assume that,
for purposes of gap tolling, California law does not differ
significantly from other states with determinate timeliness
rules. Evans v. Chavis, 546 U.S. 189, 198, 126 S.Ct.
846, 163 L.Ed.2d 684 (2006). Therefore, unjustified filing
delays longer than 30 to 60 days are unreasonable.
Chaffer v. Proper, 592 F.3d 1046, 1048 (9th Cir.
2010) (per curiam). Accordingly, a petitioner is
entitled to no statutory tolling for such delays, although
the petitioner is entitled to statutory tolling while the
petition is actually pending -- assuming that the petition
was properly filed and that the AEDPA limitations period had
not run before the petition was filed. See id.
This
law, however, is inapplicable here because the Magistrate
Judge did not find that the 68-day delay between the denial
of petitioner's second state habeas petition and the
filing of his third state habeas petition entitled petitioner
to no gap tolling for that period. Rather, relying on the
California Supreme Court's order rejecting
petitioner's third state habeas petition as untimely, the
Magistrate Judge correctly concluded that petitioner was not
entitled to statutory tolling for any period during which the
third state habeas petition was pending because that petition
was not properly filed. See 28 U.S.C. §
2244(d)(2); Bonner v. Carey, 425 F.3d 1145, 1148-49
(9th Cir. 2005), amended, 439 F.3d 993 (9th Cir.) (holding
that state court's untimeliness determination renders
petition not “properly filed” within meaning of
28 U.S.C. section 2244(d)(2)). Although petitioner suggests
that the California Supreme Court's timeliness finding
amounted to an unreasonable application of state law
(see Doc. # 29 at 14), this Court is in no position
to question the California Supreme Court's application of
California law.
Petitioner
also faults the Magistrate Judge for finding that, at all
relevant times, or at least no later than September 27, 2016,
petitioner had a copy of his trial record. [Doc. # 29 at
5-6.] According to petitioner, this finding was incompatible
with the Magistrate Judge's acknowledgment that Legal
Insights identified documents that it had in its possession
that “were not in the trial record that petitioner
had.” [Doc. # 22 at 4.] However, this reference
pertained to only a handful of documents, some of which would
not have been part of petitioner's trial record, but
rather gathered or generated after his
conviction.[1] [See Doc. # 21-2 at 176-77.]
Moreover, to the extent that some of the documents were part
of the trial record, petitioner fails to explain how any of
those documents was necessary to support any of the claims
for relief that he has asserted in this action. Further, to
the extent that petitioner lacked copies of those documents,
there is no reason to believe that Legal Insights was
responsible.[2] In any event, as the Magistrate Judge
noted, petitioner's repeated citations to the trial
record in his correspondence to Legal Insights shows that, at
all relevant times, he possessed a copy of the relevant
portions of the trial record. [See, e.g.,
Doc. # 22 at 4, 13-14, 15.]
Finally,
petitioner contends that, contrary to the Magistrate
Judge's findings, petitioner “had no knowledge of
the need to file a protective habeas petition in the federal
court prior to filing his habeas petition in the [California]
Supreme Court.” [Doc. # 29 at 17-18.] This contention
is meritless because petitioner was explicitly advised to
file a protective federal habeas petition before he filed any
of his state habeas petitions. What is more, he was advised
to do so while there was ample time remaining on the one-year
AEDPA limitations period. [See Doc. # 12-2 at 168.]
Although petitioner maintains that “he did not see the
necessity to consume the resources of the federal court by
filing a protective petition prematurely, ” he ignores
the fact that all protective petitions are filed
“prematurely.” Indeed, that is the entire point
of filing a protective petition. See Pace v.
DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161
L.Ed.2d 669 (2005) (explaining that option of filing
protective petition is designed to avoid
“predicament” of “a ‘petitioner
trying in good faith to exhaust state remedies may litigate
in state court for years only to find out at the end that he
was never properly filed,' and thus that his federal
habeas petition is time barred”). What is more, the
fact that petitioner eventually filed a protective petition,
albeit too late, shows that he could have done so at any
point.
CONCLUSION
Based
on the foregoing and pursuant to 28 U.S.C. § 636, the
Court has reviewed the First Amended Petition, the other
records on file herein, the Magistrate Judge's Report and
Recommendation, and petitioner's Objections to the Report
and Recommendation. The Court has engaged in a de
novo review of those portions of the Report and
Recommendation to which objections have been made. The Court
concurs with and accepts the findings and conclusions of the
Magistrate Judge.
ACCORDINGLY,
IT IS ORDERED:
1. The
Report and Recommendation is accepted.
2.
Respondent's Motion to Dismiss is granted.
3.
Judgment shall be entered denying and dismissing the First
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