United States District Court, C.D. California, Western Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS, IN PART, AND DISMISSING PETITION
D. EARLY UNITED STATES MAGISTRATE JUDGE.
4, 2019,  Petitioner Christopher Ndiagu
constructively filed a pro se Petition for Writ of
Habeas Corpus by a Person in State Custody with supporting
exhibits (“Petition” or “Pet.”)
pursuant to 28 U.S.C. § 2254. Dkt. 1. As the Petition
appeared untimely, on July 19, 2019, the Court issued an
Order to Show Cause why the action should not be dismissed as
untimely. Dkt. 4 (“OSC”). Petitioner filed his
response on August 16, 2019. Dkt. 7 (“Resp.”) On
August 20, 2019, the Court discharged the OSC, concluding
that the timeliness issue, should Respondent raise the issue,
would be best resolved with the consideration of the relevant
state court records and relevant records possessed by the
California Department of Corrections and Rehabilitation. Dkt.
8. The Court made no determination at that time regarding
whether the Petition was timely or whether Petitioner was
entitled to tolling, and by separate order, directed
Respondent to respond to the Petition.
September 19, 2019, Respondent filed a Motion to Dismiss on
the grounds that the Petition is untimely and four of
Petitioner's claims are procedurally defaulted. Dkt. 12
(“Motion”). Petitioner filed his Opposition to
the Motion on October 11, 2019. Dkt. 15 (“Opp.”).
Respondent filed a Reply on November 25, 2019 (Dkt. 18,
“Reply”), together with additional evidence. The
Court afforded Petitioner an opportunity to respond, and
Petitioner filed a Supplemental Opposition on December 18,
2019. Dkt. 21 (“Supp. Opp.”). On the same date,
Petitioner also filed a Motion to File New Evidence (Dkt.
22), which the Court grants to the extent the evidence bears
upon the issues and evidence raised in Respondent's
parties have consented to proceed before the undersigned
Magistrate Judge. For the reasons discussed below, the Motion
is granted, in part, and the Petition is denied as untimely
and this action is dismissed with prejudice.
April 6, 2015, a Los Angeles County Superior Court jury found
Petitioner guilty of driving under the influence causing
injury and driving with .08 percent or greater blood alcohol
level causing injury and found true seven great bodily injury
enhancements. Pet. at 2 (CM/ECF pagination is used herein for
references to the Petition); Respondent's Notice of
Lodging (“Lodgment”) 1 at 2. In a bifurcated
proceeding, the trial court found Petitioner had two prior
convictions for driving under the influence. On July 9, 2015,
Petitioner was sentenced to fifteen years in state prison.
on July 3, 2015, Petitioner constructively filed a habeas
petition in the California Court of Appeal. Lodgment 3. That
petition was denied on July 30, 2015. Lodgment 4. On August
17, 2015, Petitioner filed another habeas petition in the
California Court of Appeal,  which was denied on September 30,
2015. Lodgments 5-6.
also appealed his conviction and sentence to the California
Court of Appeal. In an unpublished decision issued on March
8, 2017, the court of appeal affirmed the judgment. Pet. at
3; Lodgment 1. A Petition for Review was denied on May 17,
2017. Pet. at 3; Lodgments 7-8.
Petitioner began another round of collateral challenges in
the state courts. On July 27, 2018, Petitioner constructively
filed a habeas petition in the Los Angeles County Superior
Court. Lodgment 9; Resp., Exh. E (attesting that Petitioner
gave his habeas petition to his housing officer on July 27,
2018). That petition was denied on August 23, 2018. Lodgment
10. On November 20, 2018, Petitioner constructively filed a
habeas petition in the California Court of Appeal. Lodgment
11. That petition was denied on December 20, 2018 on the
grounds that the petition raised “issues that could
have been raised or were rejected on appeal, and [did] not
state a prima facie case entitling petitioner to relief. (See
In re Clark (1993) 5 Cal.4th 750, 765-66.).”
Lodgment 12. Petitioner then filed a habeas petition in the
California Supreme Court on February 15, 2019, which was
denied without comment or citation to authority on June 26,
2019. Lodgments 13-14.
the Petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”), it is subject to the AEDPA's
one-year statute of limitations, as set forth at 28 U.S.C.
§ 2244(d). See Patterson v. Stewart, 251 F.3d
1243, 1245 (9th Cir. 2001). Ordinarily, the limitations
period runs from the date on which the prisoner's
judgment of conviction “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).
Petitioner does not appear to contend that he is entitled to
a later trigger date under 28 U.S.C. §
2244(d)(1)(B)-(D), and the Court finds no basis for applying
a later trigger date. As such, Section 2244(d)(1)(A) governs
in this case.
noted, the California Supreme Court denied Petitioner's
Petition for Review on May 17, 2017. As such,
Petitioner's conviction became final 90 days later, on
August 15, 2017, when the period in which to petition the
United States Supreme Court for a writ of certiorari expired.
See Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th
Cir. 2008); Bowen v. Roe, 188 F.3d 1157, 1158-59
(9th Cir. 1999).
tolling, the AEDPA's one-year limitations period expired
one year later, on August 15, 2018. Petitioner did not
constructively file the instant Petition until July 4, 2019.
Thus, absent tolling, the Petition is untimely. The burden of
demonstrating sufficient tolling, whether statutory or
equitable, rests with Petitioner. See, e.g.,
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Valdez v. Montgomery, 918 F.3d 687, 691 (9th Cir.
2019); Zepeda v. Walker, 581 F.3d 1013, 1019 (9th
Cir. 2009). As explained below, Petitioner has not shown that
he is entitled to sufficient tolling to render the Petition
Statutory Tolling Does Not Render the Petition
habeas petitioner is entitled to statutory tolling of
AEDPA's one-year statute of limitations while a
‘properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.'” Nedds v.
Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28
U.S.C. § 2244(d)(2)). Statutory tolling does not extend
to the time between the date a judgment becomes final and the
date the petitioner files his first state collateral
challenge because during that time there is no case
“pending.” See Cross v. Sisto, 676 F.3d
1172, 1179 (9th Cir. 2012).
United States Supreme Court has held that applications for
state post-conviction relief . . . will be deemed
‘pending' for purposes of 28 U.S.C. §
2244(d)(2), even during the intervals between the denial of a
petition by one court and the filing of a new petition at the
next level . . . .” Stancle v. Clay, 692 F.3d
948, 953 (9th Cir. 2012) (alternations in original)
(citations omitted); see also Carey v. Saffold, 536
U.S. 214, 219-21 (2002). However, such interval or
“gap” tolling is unavailable if the petitioner
unreasonably delays in seeking higher court review after a
lower court petition is denied. See Saffold, 536
U.S. at 225-26; see also Maxwell v. Roe, 628 F.3d
486, 495-96 (9th Cir. 2010) (“AEDPA's statute of
limitations will be tolled, however, only if the prisoner
timely filed his subsequent petition in a higher state
California law, a habeas petition is timely if it is filed
within a “reasonable time.” Evans v.
Chavis, 546 U.S. 189, 192 (2006) (quoting In re
Harris, 5 Cal.4th 813, 828 n.7 (1993) (as modified)).
California, however, has not provided guidance as to what
constitutes a “reasonable time.”
Maxwell, 628 F.3d at 496. The Supreme Court has held
that, “[i]n the absence of (1) clear direction or
explanation from the California Supreme Court about the
meaning of the term ‘reasonable time' in the
present context, or (2) clear indication that a particular
request for appellate review was timely or untimely, ”
a federal habeas court “must itself examine the delay
in each case and determine what the state courts would have
held in respect to timeliness, ” i.e., “whether
the filing of the request for state-court appellate review
(in state collateral review proceedings) was made within what
California would consider a ‘reasonable
time.'” Chavis, 546 U.S. at 198. Contrary
to Petitioner's contention (Resp. at 6; Opp. at 9-10),
the Court “cannot infer from a decision on the merits,
or a decision without explanation, that the California court
concluded that the petition was timely.” Banjo v.
Ayers, 614 F.3d 964, 968 (9th Cir. 2010); see also
Chavis, 546 U.S. at 197.
Supreme Court in Chavis observed that most states
provide a short period - between 30 and 60 days - for an
appeal to a higher court, a fact it considered in determining
whether a delay was “reasonable” for purposes of
statutory tolling. 546 U.S. at 201. After the Supreme
Court's holding in Chavis, the Ninth Circuit has
concluded that delays longer than the 30-to-60-day benchmark
are not reasonable under California law, absent a showing of
good cause for the delay. See Valdez, 918 F.3d at
692; Stewart v. Cate, 757 F.3d 929, 935-36 (9th Cir.
2014) (as amended).
the court must examine the timing of each state habeas
petition independently. “[I]f a prisoner timely files
his or her first state habeas petition but does not timely
file a second petition, then the prisoner is not entitled to
tolling for the ...