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Ndiagu v. Pollard

United States District Court, C.D. California, Western Division

January 9, 2020

MARCUS POLLARD, Acting Warden, Respondent.



         I. BACKGROUND

         On July 4, 2019, [1] 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.

         On 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.”).[2] 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 Reply.[3]

         The 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.


         On 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. Id.

         Meanwhile, 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, [4] which was denied on September 30, 2015. Lodgments 5-6.

         Petitioner 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.

         Thereafter, 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.


         Because 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.

         As 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).

         Absent 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 timely.

         A. Statutory Tolling Does Not Render the Petition Timely

         “A 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).

         “The 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 court.”).

         Under 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.

         The 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).

         Importantly, 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 ...

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