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Dun v. Fisher

United States District Court, E.D. California

December 31, 2019

LARRY DUN, Petitioner,
RAYTHEL FISHER, Warden, Respondent.



         Introduction and Summary

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. 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 rape, robbery and murder four decades ago; however, this is his first federal petition related to that conviction itself. It is not surprising that respondent would move to dismiss this habeas petition based on the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”) statute of limitations, and it might be expected that a motion would be successful. That expectation is realized here even though petitioner attempts to set forth an actual innocence claim. After carefully reviewing the filings, and application of the applicable law, the undersigned recommends dismissal of the pending habeas petition.

         Factual Background

         The court has conducted a thorough review of the record in this case, no appellate opinion has been supplied concerning the conviction itself, and Westlaw was apparently not electronically publishing unpublished decisions in the 1970s or early 1980s. Nevertheless, the facts of the case were summarized by the California Court of Appeal, Third Appellate District when it reviewed petitioner's parole suitability denial in 2010. The appellate court's summary of the facts is consistent with the court's own review of the record. Accordingly, it is provided below:

In 1976, when he was 19 years old, petitioner Larry Dun brutally raped and murdered his friend and neighbor, Maryanne Jacobs. Petitioner was convicted of first degree murder (Pen.Code, § 187), [1]rape (former § 261. 2 [now § 261, subd. (a)(2) ]), and robbery (§ 211) (evidentiary items taken), and sentenced to an indeterminate, unstayed term of seven years to life for the murder.
There is no denying that petitioner's crime was especially callous and shockingly vicious. He brutally raped and murdered his neighbor, Jacobs, someone he considered a friend.
The horror unfolded as follows. Petitioner had gone to Jacobs's home to get information about a contractor. He carried a knife with him, as he had done for some time “for protection.” He also noticed a knife in Jacobs's kitchen while they were talking. He picked up that knife, noticed her fear, and then told her to sit down and be quiet. He got some rope, tied up her wrists, and raped her. When she tried to sit up, he stabbed her. Not wanting to get caught, he then killed her.
The autopsy disclosed at least 18 stab wounds to Jacobs's neck, back, chest and abdomen; seven of which penetrated deep organs; and three of which were incised (one in the front of the neck all the way to the backbone; the second across the eyes and bridge of the nose, cutting into an eyeball; and the third on the back of the neck, severing the airway and aorta). Bloodstains were spattered throughout the bedroom walls, furnishings, and bathrooms. Finally, Jacobs had two fractured ribs, and a skull fracture from blunt force to the front and back of her head.
Shortly after the offense, with evidence against him mounting, petitioner told his parents what he had done. They drove him to the police station where he confessed.

In re Dun, No. C062163, 2010 WL 2186036, at *1, 3 (Cal.App. June 2, 2010).

         Procedural Background

         Given the age of this case, the details of petitioner's trial and conviction are somewhat murky. Suffice it to say here, that judgment against petitioner for first degree murder, robbery and rape were first entered on March 31, 1977. ECF No. 10-1 at 1-3. Pertinent to petitioner's claim of actual innocence based on insanity, the trial proceeding involved a claim of insanity, but unlike the petition here, what records which are available indicate that the defense was not based on drug use-just a general, underlying mental illness. ECF No. 1 at 30-34. More of this will be discussed below. The jury found petitioner to be sane as well as guilty. ECF No. 10-1 at 3-4.

         As set forth above, the age of the case precludes this court from specifically describing any direct appeal of petitioner's conviction, but an appeal was taken. The convictions were affirmed, but the initial sanity findings were reversed and sent back for retrial. ECF No. 1 at 123-124. A court trial was held on the renewed sanity hearings, and again, petitioner was found sane, ECF No. 1 at 65-70, and again, it does not appear that drug use was an aspect of the defense. Petitioner was resentenced in February of 1981. ECF No. 10-1 at 4-8.

         It is unknown whether petitioner actually appealed this latter sanity finding, and thus, while the precise date of the conviction finality for AEDPA purposes is unknown, presumably, it expired in the 1980s. Petitioner does not take issue with this.[2] None of these dates makes much difference because the one year AEDPA limitations statute, 28 U.S.C. § 2244(d), was not effective until April 25, 1996-a date when certainly all appellate proceedings were expired. Moreover, the fact that a habeas petition was filed in the California Supreme Court in 1997, see below, would indicate that all appeals had been exhausted. Because the finality of the conviction occurred prior to the effective date of AEDPA, the commencement date for the AEDPA limitations was one day after the enactment of AEDPA, Patterson v. Stewart, 251 F.3 1243, 1246 (9th Cir. 2001), i.e., April 25, 1996, and absent tolling, would expire on April 25, 1997.

         Petitioner did seek habeas review before the California Supreme Court in 1997, 11/26/97-6/24/1998, and given the legal limitations commencement date, the AEDPA limitations period would not have been statutorily tolled, as the commencement of the state habeas petitions postdate the expiration of the limitations period.[3]

         Of some limited consequence here, petitioner was denied parole suitability in November of 2008, but this denial was overturned by the California Court of Appeal. In re Dun, supra. The Parole Board subsequently found petitioner suitable for parole. Because the parole suitability case did not attack the conviction itself, it is of no legal consequence to the limitations analysis before this court. However, as set forth below, the factual discussion of the Court of Appeal affects petitioner's present allegations of actual innocence. To complete the procedural discussion here, however, petitioner's suitability for parole finding was short lived as the Governor at the time reversed the Board's decision finding suitability. A habeas proceeded on this reversal, but neither the Court of Appeal, nor the California Supreme Court found the habeas petition meritorious. See In re Larry Dun, 2012 WL 934725 (Cal. Supreme Court habeas petition); S200229 (Cal. Supreme Court case docket denying the petition).

         The parties do not relate that any other habeas petitions were filed within the state system germane to the conviction itself until 2019. ECF Nos. 10-3, 10-4, 10-5.

         The Instant Federal Petition

         The federal petition at bar was filed on September 9, 2019. ECF No. 1. Petitioner claims that his 1997 conviction should be invalidated for the following reasons; (Claim 1) his due process rights were violated as he was under the influence of PCP at the time the crimes for robbery, rape and murder were committed thereby demonstrating that he was legally insane; (Claim 2) vindictive and selective prosecution; (Claim 3) factual innocence of claims because the parole commissioners erred in the denial of his parole; and (Claim 4) “due diligence by extraordinary circumstances with new laws new found evidence in records.” Petitioner invites the court to peruse a plethora of exhibits to make sense of his present petition. This is a difficult task. The only consistent theme in the petition and exhibits is that petitioner now claims he is actually innocent because he was legally insane at the time of the commission of his crimes as he had ingested PCP, which made him unaware of his actions in committing the crime.


         Clearly, without consideration of the actual innocence claim in the petition, the petition is untimely by any calculation. The one year period, counting tolling, expired on April 25, 1997. Petitioner's parole proceedings expired, at the latest, in 2012. No further state petitions (regarding the conviction itself or the parole proceedings) were filed until 2019. The federal petition was filed in 2019. Therefore, with the exception of an actual innocence claim, discussed below, whatever petitioner's claims, such are untimely. This is true even if one or more of petitioner's claims involve suitability of parole issues, and not the conviction itself.

         Normally, due to the incoherence of the petition and its specific claims, the undersigned would order an amended petition to be filed with respect to an actual innocence claim. However, as seen below, such an amendment would be futile.

         Actual ...

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