Opinion
Civil No. 06cv0011 JAH (AJB).
April 12, 2006
Report and Recommendation Granting Respondent's Motion to Dismiss the Petition as Time-Barred [Doc. No. 7]
Petitioner, Eddie Lee Bell, a state petitioner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his July 31, 1997 conviction in San Diego Superior Court, Case No. HC17197, for battery, false imprisonment and making a terrorist threat. This is Bell's first petition in this Court. Respondents move to dismiss the petition as procedurally time-barred pursuant to 28 U.S.C. § 2244(d). Petitioner filed an Opposition to Respondent's Motion to Dismiss. Based upon a review of all the materials and for the reasons set forth herein, it is recommended that Respondents' Motion to Dismiss the Petition as time-barred be GRANTED.
Procedural History
1. TrialOn July 31, 1997, a jury sitting in the Superior Court of San Diego convicted Petitioner of false imprisonment (Penal Code § 236), battery (Penal Code § 242), and making a terrorist threat (Penal Code § 422). Petitioner's co-defendant was acquitted of all charges and in a bifurcated trial, the court found that Petitioner had served four prior prison sentences (Penal Code § 667.5(b)), that he had two serious prior felonies on his record (Penal code § 667(a)(1), 1192.7(c)(1)), and that he had three previous "strike convictions" (Penal Code § 667(b)-(i), 1170.12). On September 16, 1997, Petitioner's motion for a new trial was denied and Petitioner was sentenced to serve a term of 29 years to life in state prison. [Lodgement 5, Superior Court of the State of California Denial of Writ for Habeas Corpus, Case No. HC17197, November 18, 2002, p. 1; Petition for Writ of Habeas Corpus "Pet.", Case No. 06CV 0011, January 3, 2006, p. 2].
2. Direct Appeal
Petitioner filed a timely appeal with the Court of Appeal, Fourth Appellate District, Division One, arguing that the evidence was insufficient to support the conviction for making a terrorist threat and that the trial court failed to give a proper jury instruction on unanimity as to the terrorist threat charge. On April 15, 1999, the court issued an unpublished decision affirming the judgment of the trial court. [Lodgement 5, p. 2; Pet., p. 2]. On May 28, 1999, Petitioner filed a direct appeal with the California Supreme Court, which was denied on June 30, 1999. [Lodgement 2; Lodgement 3; Pet., p. 2].
3. Collateral Review in State Court
Petitioner filed a Writ of Habeas Corpus with the California Superior Court, which was denied on November 18, 2002. [Lodgement 5]. Although there is no documentation on file in the record, Petitioner claims to have filed additional Writs of Habeas Corpus with the court that were denied on January 2, 2003, May 4, 2004 and December 2004 respectively. [Pet., p. 3].
Petitioner filed Writs of Habeas Corpus with the California Court of Appeal, Fourth Appellate District, which were denied on May 14, 2003 (Case No. D041684), September 11, 2003 (Case No. D042661), and July 29, 2004 (Case No. D044614). [Petitioner's Opposition to Motion to Dismiss "Opp.", Case No. 06CV0011, March 15, 2006, Exhibit B]. Petitioner claims in his Petition to this Court that he filed an additional writ of habeas corpus with the California Court of Appeal, which was denied on December 15, 2004. [Pet., p. 4].
Petitioner filed two Writs of Habeas Corpus with the Supreme Court of California, which were denied on March 30, 2004 (Case No. S117613) and December 14, 2005 (Case No. S132823) [Pet., attachment].
4. Collateral Review in Federal Court
Petitioner filed the instant Petition in this Court on January 3, 2006. [Pet. p. 1]. Petitioner challenges his conviction based on the following: (1) Ineffective assistance of counsel; (2) Grossly [disproportionate] sentence and unauthorized restitution; (3) Unintelligent waiver; and (4) Improper interrogation. [Pet., p. 6-9].
Discussion
Because the instant petition was filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which sets forth a one year statute of limitations for state prisoners seeking collateral review in federal court. Pursuant to AEDPA, 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an application for 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 a 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 application was prevented from filing by such State action;
c) the date on which the constitutional right asserted was initially 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.
The statute of limitations is tolled, however, while "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 California Supreme Court filed its order on June 30, 1999, denying direct review of Petitioner's case. [Lodgement 3]. This was Petitioner's last attempt at obtaining direct review. Under 28 U.S.C. § 2244(d)(1)(a), the period of "direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). In the instant case, the period within which Petitioner could have applied for certiorari ended on September 28, 1999, ninety days after the California Supreme Court denied direct review of Petitioner's case. Therefore, Petitioner had until September 27, 2000 to file a timely petition with this Court.
Petitioner filed his Petition for Writ of Habeas Corpus with this Court on January 3, 2006, approximately six years after AEDPA's one year statute of limitations began to run. The petition is therefore time-barred unless Petitioner is entitled to a filing date that is later than September 27, 2000. Based on the provisions of § 2244(d)(1)(b)-(d), this Court finds that since there was no state impediment to Petitioner filing his petition before the expiration of the statute of limitation; and the Petitioner's claims do not depend on a new or recently recognized constitutional right; and the factual predicates for Petitioner's claims were known by the time judgment was imposed, this Court finds that the Petitioner is not entitled to a tolling period later than the conclusion of direct review:.
Petitioner is not entitled to statutory tolling under § 2244(d)(2). Petitioner did not seek collateral relief in state court until November 4, 2002, approximately two years after the AEDPA's statute of limitations had expired. [Lodgement 4]. Statutory tolling cannot revive the limitations. It can only work to toll a statutory period that has not already expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
Petitioner also fails to establish that he is entitled to equitable tolling as he fails to establish "extraordinary circumstances" beyond his control that made it impossible to file a timely petition. Calderon v. U.S. District Court (Beeler), 128 F.3d 1238, 1288-89 (9th Cir. 1997). Petitioner alleges that his ability to file a timely petition was impeded by: (1) his confinement in Pelican Bay Correctional Facility from 1998 through September 13, 2000; (2) his lack of understanding of the law; (3) an inability to make copies of his court transcripts at the Corcoran Correctional Facility's law library; and (4) a lack of legal assistance. [Opp., p. 1-3]. The burden of demonstrating "extraordinary circumstances" rests with the Petitioner. Beeler, 128 F.3d at 1289. Equitable tolling does not extend to such "garden variety" contentions of "excusable neglect" such as lack of knowledge of the filing deadlines, lack of representation, and unfamiliarity with the legal process. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990); Barrow v. New Orleans S.S. Ass'n., 932 F.2d 473, 478 (5th Cir. 1991). The circumstances to which Petitioner cites do not rise to the level of extraordinary. Additionally, Petitioner fails to explain how such circumstances made it impossible for him to file a timely petition.
If you enter the pin cite on either Lexis or Westlaw, it will return with a different case. However, if you search by party names, this case comes up with the proper cite. In the hard copy version of the Federal Reporter this case is found under this cite.
Conclusion
For the reasons set forth herein, the Court recommends that Respondents' Motion to Dismiss be GRANTED. This Report and Recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(1988). Any written objections to this Report and Recommendation must be filed with the Court and a copy served on all parties on or before May 3, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before May 17, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of this Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.