Opinion
No. 2:15-cv-2175 CKD P
05-06-2016
MIGUEL RODRIGUEZ, Petitioner, v. JIM MacDONALD, Warden, Respondent.
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the petition filed October 19, 2015, in which petitioner challenges his 2006 conviction for sex offenses. (ECF No. 1.) Before the court is respondent's motion to dismiss the petition as time-barred. (ECF No. 10.) Petitioner has filed an opposition to the motion, and respondent has filed a reply. (ECF Nos. 13 &14.) For the reasons set forth below, the undersigned will recommend that respondent's motion be granted. //// ////
FACTUAL AND PROCEDURAL HISTORY
On August 23, 2006, in the Shasta County Superior Court, petitioner was convicted of two counts of forcible rape, one count of forcible sodomy, and one count of forcible oral copulation. (Lod. Docs. 1-2.) He was sentenced to a determinate state prison term of 24 years. (Lod. Doc. 2.)
Respondent's Lodged Documents. See ECF No. 11.
Petitioner appealed his conviction and, on October 7, 2008, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lod. Doc. 2.) Petitioner sought review in the California Supreme Court, which denied review without prejudice on January 14, 2009. (Lod. Docs. 3-4.)
Petitioner filed six pro se post-conviction collateral challenges, all petitions for writs of habeas corpus, in the state courts. The first petition was filed on January 10, 2013, and the last was filed on March 26, 2015. (Lod. Docs. 5-15.) The sixth and final petition was denied on June 10, 2015. (Lod. Doc. 16.)
These petitions are given the benefit of the "mailbox rule," Habeas Rule 3(d), in which a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Houston v. Lack, 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The mailbox rule applies to federal and state petitions alike.
Petitioner filed the instant action on October 12, 2015. (ECF No. 1.)
STATUTE OF LIMITATIONS UNDER THE AEDPA
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. § 2244 provides as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The AEDPA statute of limitations is tolled during the time a properly filed application for post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). The statute of limitations is not tolled during the interval between the date on which a decision becomes final and the date on which the petitioner files his first state collateral challenge. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once state collateral proceedings are commenced, a state habeas petition is "pending" during a full round of review in the state courts, including the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between petitions are "reasonable." See Evans v. Chavis, 546 U.S. 189, 192 (2006); Carey v. Saffold, 536 U.S. 214, 222-24 (2002).
ANALYSIS
I. Commencement of the Running of the Limitation Period
Under § 2244(d)(1)(A), the limitation period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). The statute commences to run pursuant to § 2244(d)(1)(A) upon either 1) the conclusion of all direct criminal appeals in the state court system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or 2) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state court system followed by the expiration of the time permitted for filing a petition for writ of certiorari. Wixom, 264 F.3d at 897 (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998), cert. denied, 525 U.S. 1187 (1999)).
Here, petitioner appealed his judgment of conviction. The California Supreme Court denied review on January 14, 2009. The time to seek direct review ended on April 14, 2009, when the 90-day period for filing a petition for writ of certiorari with the United States Supreme Court expired. Supreme Court Rule 13. The one-year limitations period began to run the following day, April 15, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P 6(a)). Thus the last day to file a petition was on April 14, 2010, plus any time for tolling.
In opposition to the motion, petitioner argues that the limitations period began to run after the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which issued on June 17, 2013. On April 2, 2014, petitioner filed a habeas petition in the Shasta County Superior Court seeking to reduce his sentence based on Alleyne, which held that any fact that increases the mandatory minimum sentence for a crime must be submitted to the jury. (Lod. Doc. 11.) On May 7, 2014, the superior court denied the petition. (Lod. Doc. 12.) On July 7, 2014, petitioner asserted an Alleyne claim in a petition to the state court of appeal, which denied the petition on July 31, 2014. (Lod. Docs. 13-14.) Petitioner then raised the claim in a petition to the state supreme court, which denied review on June 10, 2015. (Lod. Docs. 15-16.)
In the instant federal action, petitioner challenges his sentence based on Alleyne. (ECF No. 1.) He argues that, because he filed his federal petition within one year of exhausting his claim in the state courts, his claim is timely. (ECF No. 13.)
Under 28 U.S.C. § 2244 (d)(1)(C), the one-year limitation period for an application for a writ of habeas corpus may run from "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable on collateral review." (Emphasis added.) This provision does not apply to the rule announced in Alleyne, which is not retroactively applicable to cases on collateral review. Hughes v. United States, 770 F.3d 814 (9th Cir. 2014) (holding that the Supreme Court has not made Alleyne retroactive to cases on collateral review); see, e.g., Lemus v. U.S., 2015 WL 5123616, *3 (E.D. Cal. Aug. 31, 2015) (petitioner whose conviction became final in 2010 "cannot avail himself of the rule in Alleyne because the rule cannot be applied retroactively.").
Petitioner argues that Alleyne is a "watershed rule of criminal procedure" that implicates the fairness and accuracy of the criminal proceeding and thus must be applied retroactively. (ECF No. 13 at 10.) However, the Ninth Circuit rejected this view in Hughes. 770 F.3d at 818 ("[W]e conclude that Alleyne . . . does not fall within the procedural 'watershed' exception" so as to have retroactive effect).
Moreover, on state habeas review, the Shasta Superior Court found Alleyne inapplicable to plaintiff's sentence under California law, writing: "The Alleyne case is one interpreting federal law related to sentencing and Rodrigues' reliance upon it is misplaced. California amended its own sentencing law to address the Cunningham/Apprendi/Blakeley decisions in order to allow for the trial court's review and decision-making on the low, middle and upper terms. Defendant Rodrigues was sentenced following this legislative action." (Lod. Doc. 12.)
Petitioner commenced this federal habeas action on October 12, 2015, more than five years past the AEDPA deadline. Absent tolling, the petition is untimely.
II. Tolling
Title 28 U.S.C. § 2244(d)(2) states that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one-year limitation period. 28 U.S.C. § 2244(d)(2).
The tolling provision of § 2244(d)(2) can only pause a clock not yet fully run; it cannot "revive" the limitations period once it has run (i.e., restart the clock to zero). Thus, a state court habeas petition filed beyond the expiration of AEDPA's statute of limitations does not toll the limitations period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
Here, all of petitioner's state petitions were filed after the one-year limitations period ended on April 14, 2010. His first state petition was filed on January 10, 2013, nearly three years after the deadline, and was explicitly found untimely by the Shasta County Superior Court. (Lod. Doc. 6.) Because these state petitions cannot toll the running of the already-run statute, petitioner is not entitled to statutory tolling.
Nor is the federal petition entitled to equitable tolling, which requires a petitioner to demonstrate that (1) he had been pursuing his rights diligently, and (2) some extraordinary circumstance prevented him from filing on time. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Petitioner must show that the "extraordinary circumstance" was the cause of the untimeliness. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Equitable tolling is "unavailable in most cases." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), citing Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Here, petitioner has shown neither diligence nor "extraordinary circumstance" such as to warrant equitable tolling.
Thus the undersigned will recommend that the petition be dismissed as time-barred.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court shall substitute Jim MacDonald, Warden, as respondent in the docket of this action; and
2. The Clerk of Court shall assign a district judge to this action.
IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (ECF No. 10) be granted and this case closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: May 6, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 2/ rodr2175.mtd_fr