Opinion
No. C 07-03354 CW (PR), (Docket no. 8).
August 28, 2008
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY
INTRODUCTION
On June 26, 2007, Petitioner Dale Wills, a state prisoner incarcerated at the California State Prison — Corcoran, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging ineffective assistance by his trial and appellate counsel and prosecutorial misconduct. The Court ordered Respondent to show cause why the writ should not be granted. On October 16, 2007, Respondent James Tilton filed a motion to dismiss. Petitioner filed an opposition on January 18, 2008. Respondent filed a reply on January 31, 2008. For the reasons set forth below, Respondent's motion to dismiss is GRANTED.
BACKGROUND
In 1988, Petitioner pled guilty to a first degree burglary charge stemming from an incident that occurred at the home where he was living with his family. He was sentenced to one year in prison.
In May, 1995 Petitioner was arrested in San Lorenzo for being drunk in public. (Mot. to Dismiss at 2.) Police discovered a bike in Petitioner's possession that was reported as stolen from a residence about a half mile from where Petitioner was arrested. (Id.) Petitioner was subsequently charged with first degree burglary and grand theft. (Id.)
In May, 1996, Petitioner was found guilty of both the theft and burglary. The court found true the allegation that Petitioner had a prior 1988 conviction for first degree burglary, which constituted a "strike" under California's Three Strikes law. See Cal. Penal Code §§ 667(e)(1), 1170.12(c)(1). The court also found true two allegations that Petitioner had served prior prison terms. See id. § 667.5(b). Petitioner was sentenced to seventeen years in prison based upon his two prior prison commitments and his 1988 burglary conviction.
Petitioner challenged his conviction in the California Court of Appeal where it was affirmed on June 30, 1997. Thereafter, Petitioner filed two unrelated state habeas corpus petitions in the California Supreme Court alleging various violations of his rights by prison officials.
The first of these claims involved an allegedly "arbitrary withholding of Petitioner's tennis shoes by prison officials." The second involved alleged confiscation of his property as well as denial of access to the courts. Both claims were rejected by the California Supreme Court with a citation to In re Dexter, 25 Cal. 3d 921 (1979).
In March, 2005, Petitioner discovered a case, People v. Davis, which he contends should have been cited by his trial counsel because it stands for the proposition that one cannot burglarize one's own home. 18 Cal. 4th 712, 721 (1998) (citing People v. Gauze, 15 Cal. 3d 709, 714 (1975)). Thus, he claims, Davis invalidates his 1988 burglary conviction because the facts alleged in that conviction involved the burglary of the home where he lived at that time.
Davis was decided in 1998, two years after Petitioner was sentenced by the trial court.
Petitioner subsequently filed a petition for a writ of habeas corpus in the Alameda County Superior Court, which was denied on March 21, 2006. He filed a subsequent habeas petition in the California Court of Appeal which was denied on June 1, 2006. Petitioner filed a third habeas petition in the California Supreme Court which was denied on February 7, 2007.
Petitioner filed the present petition for a writ of habeas corpus on June 26, 2007. The claims raised in the petition include: (1) ineffective assistance of counsel for failing to move to strike his 1988 burglary conviction because it was invalid under Davis; and (2) prosecutorial misconduct in charging his previous burglary conviction as a prior, for the same reason.
DISCUSSION
The AEDPA became law on April 24, 1996 and imposed for the first time a statute of limitations 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 date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). Also, "[t]he 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." Id. § 2244(d)(2).
A state prisoner with a conviction finalized after April 24, 1996, such as Petitioner, ordinarily must file his federal habeas petition within one year of the date his process of direct review came to an end. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc).
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). In a case where a petitioner does not seek review in the state supreme court, "direct review" concludes forty days after the court of appeals renders its decision. Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002).
In the present case, Petitioner did not seek review in the California Supreme Court. Thus, the judgment became final for purposes of the statute of limitations on August 9, 1997, forty days after the court of appeal rendered its decision. Duncan, 297 F.3d at 809. Accordingly, Petitioner was required to file a federal habeas corpus petition no later than August 9, 1998. Because he did not file the present petition until June 26, 2007 — nearly nine years after the limitations period had expired — the petition is untimely unless he can show that he is entitled to tolling or to a delayed commencement of the limitations period.
I. Statutory Tolling
The petition may nonetheless be timely if the limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a substantial period of time. As noted earlier, AEDPA's one-year limitations period is tolled under § 2244(d)(2) for "[t]he 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. . . ." 28 U.S.C. § 2244(d)(2). The limitations period is also tolled during the time between a lower state court's decision and the filing of a notice of appeal to a higher state court. Carey, 536 U.S. at 223. In California, where prisoners generally use the state's original writ system, this means that the limitations period remains tolled during the intervals between a state court's disposition of an original state habeas petition and the filing of the next original state habeas petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 220-25.
Petitioner filed his state habeas petition in the Alameda County Superior Court on February 18, 2005. However, he is not entitled to tolling under Section 2244(d)(2) because the limitations period had already run on August 9, 1998. A state habeas petition filed after AEDPA's statute of limitations ended cannot toll the limitations period. "[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that Oregon's two-year limitations period for the filing of state habeas petitions does not alter the operation of the AEDPA, even though prisoners who take full advantage of the two-year period will forfeit their right to federal habeas review). Section 2244(d)(2) cannot revive the limitations period once it has run. It cannot restart the clock to zero; it can only serve to pause a clock that has not yet fully run. Thus, in order to toll the limitations period under § 2244(d)(2), Petitioner should have begun to pursue collateral relief in state court before AEDPA's one-year limitations period had expired. See Ferguson, 321 F.3d at 823; see also Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998) ("Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations").
Accordingly, Petitioner's state habeas petition filed on February 18, 2005 does not revive the limitations period because it had already expired. Therefore, without more, Petitioner is not entitled to statutory tolling of the limitations period.
II. Delayed Commencement
Petitioner argues for a delayed commencement of the limitations period pursuant to 28 U.S.C. § 2244(d)(1)(B) and (C).
Under 28 U.S.C. § 2244(d)(1)(B), the statute of limitations in habeas proceedings does not begin to run until "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."
Petitioner contends that the State's failure to provide him with effective assistance of counsel amounted to a state-created impediment to his filing of his state and federal habeas petitions. Petitioner is effectively arguing that because he relied upon the Constitutional guarantee of effective assistance of counsel at trial, he was "impeded" from looking into the case law surrounding his 1988 burglary conviction (and subsequently discovering Davis). Petitioner cites Coleman v. Thompson for the proposition that ineffective assistance of state-appointed counsel "constitutes an `impediment to filing an application created by State action in violation of the Constitution.'" 501 U.S. 722, 754 (1991).
Coleman is distinguishable from the present case and does not apply because it addresses the issue of procedural default. InColeman, the petitioner was unable to pursue federal habeas relief because of the failure of his counsel, post-trial, to file a direct appeal before the deadline. Id. Here, Petitioner's counsel allegedly failed to raise a specific motion before or during trial. Counsel's alleged mistake had no effect upon Petitioner's ability to file for collateral relief, despite the fact that Petitioner had no understanding of the relevant case law or the mistake his trial counsel allegedly made. Rather than being defaulted because of his counsel's failure to appeal, Petitioner's claim is time-barred.
Accordingly, Petitioner's claim that a state-created impediment delayed the onset of the statute of limitations fails because Petitioner, rather than trial counsel, was responsible for timely filing his habeas petition.
Petitioner also contends that he is entitled to delayed commencement based upon a new rule of constitutional law handed down by the Supreme Court in Rompilla v. Beard, 545 U.S. 374 (2005).
Under 28 U.S.C. § 2244(d)(1)(C), the statute of limitations in habeas proceedings does not begin to run until "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."
Petitioner claims that June 30, 2005, the date of the Supreme Court's ruling in Rompilla, is the proper starting date for the statute of limitations. He states:
In Rompilla, the Supreme Court, for the very first time, held that an attorney's failure to conduct an adequate investigation of prior convictions amounted to deficient performance, see 545 U.S. at 383, that was sufficiently prejudicial to sustain a finding of ineffective assistance of counsel. See id. at 390. Thus, the Rompilla Court announced a "new rule." And because Rompilla is a habeas proceeding, it necessarily follows then, a fortiori, that it has been "made retroactively applicable to cases on collateral review" as the holding is dependent on retroactivity, i.e., Rompilla could not have obtained the relief he did unless the decision called for retroactive application.
(Opp'n at 18-19.)
The Supreme Court's decision in Rompilla did not pronounce a new rule of constitutional law as the term is used in section 2244(d)(1)(C). Instead, the case cites Strickland v. Washington, 466 U.S. 668 (1984), which announced the current rule under federal law for reviewing ineffective assistance of counsel claims. See In re Hutcherson, 438 F.3d 749 (11th Cir. 2006) (denying petitioner's request to file a second habeas corpus petition under 28 U.S.C. § 2244(b) because "the Court's decision in Rompilla was another interpretation of the Court's long-standing principles set forth in Strickland v. Washington" (internal citations omitted)).
Thus, because the Strickland line of cases was available to Petitioner during the relevant statute of limitations period, his argument based on section 2244(d)(1)(C) fails. Accordingly, his federal habeas is untimely, unless equitable tolling applies.
III. Equitable Tolling
The one-year limitations period can be equitably tolled because section 2244(d) is a statute of limitations and not a jurisdictional bar. See Beeler, 128 F.3d at 1288. "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling will not be available in most cases because extensions of time should be granted only if "`extraordinary circumstances' beyond [a] prisoner's control make it impossible to file a petition on time." Beeler, 128 F.3d at 1288 (citation and internal quotation marks omitted). The prisoner must show that "the `extraordinary circumstances' were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (citations omitted). The Ninth Circuit has said that the petitioner "bears the burden of showing that this extraordinary exclusion should apply to him."Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). "`[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Id. at 1066 (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 531 U.S. 878 (2000)). The grounds for granting equitable tolling are "highly fact dependant." Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002). Where a prisoner fails to show "any causal connection" between the grounds upon which he asserts a right to equitable tolling and his inability to file a federal habeas application timely, the equitable tolling claim will be denied. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), amended, 447 F.3d 1165 (9th Cir. 2006).
However, "[r]ather than let procedural uncertainties unreasonably snuff out a constitutional claim, the issue of when grave difficulty merges literally into `impossibility' should be resolved in [a petitioner's] favor." Lott, 304 F.3d at 920. When a prisoner is proceeding pro se, his allegations regarding diligence in filing a federal petition on time must be construed liberally. Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006).
Petitioner argues that he is entitled to equitable tolling under "the doctrine of fraudulent concealment." (Mem. in Supp. of Pet. for Writ of Habeas Corpus at 21.) Petitioner summarizes his claim as follows:
Due to his lack of adequate knowledge of the law and sole reliance on appointed counsel representing him in the trial and appellate courts, Petitioner had no objectively reasonable cause to believe or even remotely suspect that any grounds existed to justify the relief sought by this current petition until March of 2005, when Petitioner came upon the People v. Davis case.
(Pet. at 12-13.) According to Petitioner, it was not until he discovered Davis that he could have known that his counsel had failed to inform him of it. Based upon his total reliance on counsel, he alleges that counsel's failure to inform him of Davis amounts to "fraudulent concealment" entitling him to equitable tolling.
There is no "doctrine of fraudulent concealment" in the equitable tolling context. Petitioner has not alleged any affirmative conduct on the part of his trial or appellate counsel that amounts to concealment. Instead, Petitioner is effectively alleging that he is entitled to equitable tolling because he was ignorant of the law and his former counsel failed to notify him of a new case.
Petitioner's argument fails. The law is clear that ignorance of the law and lack of legal experience typically do not excuse untimely filing, even for a pro se incarcerated prisoner.Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006).
Petitioner also claims that he is entitled to equitable tolling because he was held in the prison's Secure Housing Unit (SHU) and had restricted law library access. Petitioner does not describe in any detail how his law library access was "more restricted" than any other inmate. Further, he alleges no specific set of facts setting forth how long he was housed in the SHU and how his inability to access the law library during that time prevented him from filing his federal habeas petition in a timely manner. Therefore, Petitioner's argument fails.
Accordingly, Petitioner is not entitled to equitable tolling of the limitations period.
IV. Actual Innocence
The actual innocence gateway established in Schlup v. Delo, 513 U.S. 298 (1995), may be available to a petitioner whose petition is otherwise barred by the AEDPA's limitations period. See Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002) (implying that unavailability of actual innocence gateway would raise serious constitutional concerns and remanding to district court for a determination of whether actual innocence claim was established before deciding whether gateway is available under AEDPA). For purposes of this Order, this Court will assume that actual innocence, if established according to the Schlup standard, would avoid the statute of limitations bar.
Thus,
[i]f a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claim.Id. at 316.
"To be credible, such an actual innocence claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. The "new" evidence need not be newly available, just newly presented — that is, evidence that was not presented at trial. Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
It is not enough that the new evidence show the existence of reasonable doubt; rather, petitioner must show "that it is more likely than not that no `reasonable juror' would have convicted him." Schlup, 513 U.S. at 329. As the Ninth Circuit has stated, "the test is whether, with the new evidence, it is more likely than not that no reasonable juror would have found [p]etitioner guilty." Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001). Thus, actual innocence means factual innocence, not merely legal insufficiency. Bousley v. United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer, 505 U.S. at 339).
In the present case, Petitioner alleges that he is actually innocent of the crimes of which he was convicted in 1996 as well as the 1988 burglary charge to which he pled guilty. Petitioner suggests that due to misconduct on the part of both the defense and the prosecution, his 1996 trial was corrupted and he was falsely convicted. (Opp'n at 20-25.)
Petitioner alleges that his defense counsel was ineffective in failing to move to suppress the prosecution's evidence (a bicycle that he possessed, the fact that he was intoxicated, and incriminating statements he made when he was arrested) and failing to obtain exculpatory evidence (fingerprints on the bicycle, a blood-alcohol test). Petitioner also contends that his defense counsel failed to move to strike his 1988 burglary conviction and suborned him to commit perjury by making him testify that he was intoxicated when he was arrested. Petitioner also alleges that the prosecutor committed misconduct by charging Petitioner's previous burglary conviction as a prior.
Petitioner's claims fail because his allegations do not amount to "clear and convincing evidence" that he is actually innocent of either his 1996 or 1988 convictions. Petitioner confuses the actual innocence standard with an inquiry into the merits of his case. He has provided no evidence akin to "credible declarations of guilt by another, trustworthy eyewitness accounts, or exculpatory scientific evidence" to support his innocence.Schlup, 513 U.S. at 324. Instead, he alleges that misconduct at trial caused him to be prejudiced during legal proceedings. Such misconduct has no bearing upon whether he is actually innocent of the crimes of which he was convicted. Accordingly, his actual innocence claim fails.
CONCLUSION
The instant petition for habeas corpus was filed nearly nine years after the statute of limitations expired. Petitioner is not entitled to tolling or a delayed commencement of the limitations period, and his actual innocence claim is unsupported. Therefore, the petition is untimely because the statute of limitations expired on August 9, 1998. Accordingly, Respondent's motion to dismiss (docket no. 8) is hereby GRANTED.
The Clerk of the Court shall enter judgment in accordance with this Order, terminate all pending motions and close the file. The parties shall bear their own costs.
This Order terminates Docket no. 8.
IT IS SO ORDERED.