Opinion
No. C 03-0120 MMC (PR), (Docket No. 5).
July 9, 2003
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition as untimely; petitioner filed an opposition, to which respondent has filed a reply.
BACKGROUND
Petitioner was convicted in Santa Clara County Superior Court of robbery and prior conviction allegations were found true. On May 13, 1999, the trial court sentenced petitioner to 30 years to life in state prison under California's Three Strikes Law. The California Court of Appeals affirmed. Petitioner's petition for direct review to the Supreme Court of California was denied.
Petitioner then filed a petition in this Court on December 6, 2001.See Hollins v. Pliler, No. C 01-4783 MMC (PR). Petitioner voluntarily requested a dismissal of that petition because he wanted to add new claims to the petition, and to exhaust them before he did so. See generally Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding district court the Court granted petitioner's request and dismissed the petition without prejudice to refiling after petitioner had exhausted his state court remedies. On June 14, 2002, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California, presenting his unexhausted claims. The petition was denied on October 23, 2002. Thereafter, petitioner filed the instant petition.
The petition was filed in the California Supreme Court on July 1, 2002. Under the "mailbox rule," however, it is deemed filed on June 14, 2002, the date petitioner signed the petition. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996, and imposed for the first time a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1).
The one-year period generally will run from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, the state courts' direct review of petitioner's conviction and sentence ended on December 13, 2000, when the Supreme Court of California denied the petition for direct review. However, the "time for seeking" direct review under 28 U.S.C. § 2244(d)(1)(A) includes the 90-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court under Supreme Court Rule 13, whether or not the petitioner actually files such a petition. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). As a result, petitioner's "time for seeking" direct review expired, and the limitations period for filing a federal habeas petition began, on March 12, 2001. Consequently, the federal limitations period expired one year later, on March 12, 2002. The instant petition is deemed filed in this court on December 26, 2002, the date petitioner signed the petition. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds, Carey v. Saffold, 122 S.Ct. 2134 (2002). As that date is approximately nine months after the limitations period expired, the petition, absent tolling, is untimely.
The running of the one-year limitations period is tolled for the time period during which a properly filed application for post-conviction or other collateral review is pending in the state courts. See id. 28 U.S.C. § 2244(d)(2). Here, petitioner's only application for post-conviction or other collateral review in the state courts was filed after the expiration of the limitations period. A state court petition filed after the expiration of the limitations period does not toll the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Consequently, tolling is not available to petitioner under § 2244(d)(2).
The limitations period is not tolled under § 2244(d)(2) during the pendency of a habeas petition filed in federal court.Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001).
Petitioner claims that he nonetheless is entitled to equitable tolling, based on his prior federal habeas petition, which was timely filed. The Court's order dismissing that petition stated that the dismissal was "without prejudice to filing a new habeas petition after available state remedies have been exhausted." Petitioner states that he did not know that a subsequent petition would be subject to any deadline because the order did not mention any deadline for filing the new petition or inform him of thee statute of limitations. Petitioner also complains that the order did not inform him of the option of staying the petition while he exhausted his state court remedies. Petitioner states that if he had known that a subsequent habeas petition could be barred as untimely, or that he had the option of staying proceedings on the initial petition, he would not have sought voluntary dismissal of the earlier petition.
It is undisputed that petitioner's prior federal petition was timely.
The Ninth Circuit has recently announced that it is error to dismiss a mixed petition without informing petitioner of the statute of limitations and the option of such a stay and abeyance when any newly filed habeas petition would be untimely. Ford v. Hubbard, No. 98-56455, slip op. 6323, 6348 (9th Cir. May 15, 2003).
In Brambles v. Duncan, 330 F.3d 1197 (9th Cir. 2003), the petitioner sought equitable tolling on the grounds that he had filed a previous habeas petition in the federal court. See id. at 1201. Because the prior petition was a mixed petition, the district court dismissed it without prejudice. See id. at 1200-01. The district court did not inform the petitioner that the statute of limitations had already run, and thus any subsequent petition would be untimely, or that the petition could be stayed while he exhausted his state court remedies. See id. As a consequence, when petitioner returned and filed a new petition in federal court after exhausting his remedies, the new petition was untimely. The petitioner in Brambles argued that the limitations period should be equitably tolled because the dismissal of his prior petition had caused him to believe that a future petition would be allowed. See id. The Ninth Circuit held that equitable tolling was required. See id. at 1202-03.
The grounds for allowing equitable tolling in Brambles do not exist here. First, in Brambles the Ninth Circuit concluded it was unfair and misleading to state that the dismissal of the prior petition was "without prejudice" to filing a future federal petition, in that the limitations period had already expired, and therefore "for all practical purposes that dismissal was a dismissal with prejudice." See id. at 1201; see also Smith v. Ratelle, 323 F.3d 813, 820-24 (9th Cir. 2003) (finding equitable tolling warranted where district court dismissed prior timely mixed petition without providing opportunity to delete unexhausted claims and gave misleading information that failed to inform petitioner that any new petition would be untimely). In this case, by contrast, petitioner's prior petition was dismissed on February 1, 2002, when over 40 days remained before the limitations period expired. As a result, the dismissal of the prior petition in this case, unlike in Brambles and Smith, was not misleading; at the time the prior petition was dismissed, petitioner retained the ability to file a new federal petition that would not be barred as untimely. Moreover, the remaining 40 days of the limitations period was sufficient time for petitioner to at least file his unexhausted claims in the state court, which, under § 2244(d)(2), would have stopped the running of the limitations period. See Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2003) (indicating that 30 days constitutes sufficient time for petitioner to file unexhausted claims in state court). Moreover, the filing of a petition in state court results in an additional 30 days of tolling beyond the date of the denial by the California Supreme Court. See Allen v. Lewis, 295 F.3d 1046 (9th Cir. 2002) (en banc) (holding, under Rule 24 of the California Rules of Court, state supreme court decision becomes "final" 30 days after decision is issued). Even if petitioner had waited 30 days, for example, to file his unexhausted claims in state court, petitioner would have had 40 days following the denial of his petition (the 10 days remaining of his initial 40 days plus the 30 additional days afforded under Allen) within which to return to federal court.
The second reason the Ninth Circuit applied equitable tolling inBrambles was that the dismissal of the prior petition was erroneous underFord v. Hubbard, No. 98-56455, slip op. 6323 (9th Cir. May 15, 2003).See Brambles, 330 F.3d at 1202-03. In Ford, the Ninth Circuit held it was error to dismiss a mixed petition when the statute of limitations had already run without informing the petitioner that he could request a stay of the petition while exhausting his unexhausted claims. See Ford, slip op. at 6348, 6352-53 (holding where mixed petition was improperly dismissed, and pro se petitioner returned to exhaust his unexhausted claims, second petition filed without unreasonable delay relates back to and preserves filing date of improperly-dismissed initial petition under Federal Rule of Civil Procedure 15(c)). Here, unlike in Brambles, petitioner's prior petition was not mixed; it contained only exhausted claims. Petitioner wanted to add new claims to the petition, which claims he had not yet exhausted. Ford only addressed mixed petitions, not fully exhausted petitions such as petitioner's prior petition in this case.Ford contains no requirement that a district court sua sponte inform a petitioner with a fully exhausted petition that he can stay the petition while he exhausts additional claims. Nor does Ford require that claims added in a subsequent petition relate back to the initial petition. See was not erroneous under Ford, unlike the dismissals of the prior mixed petitions in Brambles and Smith.
Because the dismissal of petitioner's previous federal petition was not erroneous, and the limitations period had not already expired at the time of the prior petition's dismissal, this case, unlike Brambles and Smith, does not present circumstances warranting equitable tolling. Moreover, the untimeliness of petitioner's second petition was not beyond petitioner's control. Equitable tolling is only available if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." See Brambles, 330 F.3d at 1202;Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997). In both Brambles and Smith, the dismissal of the initial petition was against the petitioner's wishes, and thus was deemed beyond the petitioner's control. Here, however, petitioner voluntarily dismissed his prior petition, which was filed approximately nine months after the limitations period had expired. Shortly thereafter, with close to a month and a half still remaining of the limitations period, petitioner decided that he wanted to pursue additional claims, and voluntarily chose to seek the dismissal of his petition. More than four months later, petitioner filed his unexhausted claims in the Supreme Court of California, and approximately two months after the denial of those claims, petitioner chose to return to federal court with a new petition. These circumstances, and, in particular, petitioner's request for voluntary dismissal of his initial federal petition, cannot fairly be characterized as "beyond his control."
Finally, the six months petitioner took to exhaust his unexhausted claims in state court and to return to federal court, excluding the time the state petition was pending in the state court, is sufficiently excessive to demonstrate a lack of diligence. See Brambles, 330 F.3d at 1204 (holding equitable tolling based on erroneous dismissal of earlier mixed petition applicable only where pro se petitioner was reasonably diligent in exhausting his claims in state court and returning to federal court; finding reasonable diligence where pro se petitioner took total of 85 days). In Kelly v. Small, 315 F.3d 1063, the Ninth Circuit held that a district court staying a petition may require the petitioner to file his unexhausted claims in state court within thirty days, and to return to federal court within thirty days of a final decision by the state court on those claims, for a total of sixty days. See id. at 1071. Petitioner took far more time than that in this case.
Petitioner refers in his opposition to lockdowns and inadequacies in the law library. He does not allege, however, when or for how long these lockdowns occurred, and, as a result, he does not meet his burden of establishing that such conditions "prevented him" from timely filing his state court habeas petition and subsequent federal petition. Similarly, the deficiencies alleged in the law library do not include any failure to inform petitioner of the AEDPA's statute of limitations or the potential untimeliness of a future petition.
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition as untimely is GRANTED and the petition for a writ of habeas corpus is DISMISSED.This order terminates Docket No. 5 and any other pending motions.
The clerk shall close the file.
IT IS SO ORDERED.