Summary
stating that "the law is clear that a dismissal on statute of limitations grounds . . . operates as a final judgment on the merits," and holding that a federal petition was successive
Summary of this case from Joiner v. SuttonOpinion
NO. CIV. S-01-0384 WBS JFM P.
December 28, 2001
MEMORANDUM AND ORDER
Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On November 9, 2001, the magistrate judge filed findings and recommendations which recommended that respondent's June 28, 2001 motion to dismiss be denied. Respondent filed objections to those findings and recommendations on November 28, 2001. In accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of the case.
I. Factual and Procedural Background
On August 22, 1995, petitioner was sentenced in state court to life without possibility of parole, consecutive to a determinate 18-year prison term, based on his conviction for first degree murder with special circumstances. Petitioner's conviction was affirmed by the California Supreme Court on January 15, 1997 and became final 90 days thereafter, on April 15, 1997. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
On January 16, 1998, petitioner filed a petition for writ of habeas corpus in the Del Norte County Superior Court. That petition was denied on February 19, 1998. On April 16, 1998, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. That petition was denied on April 21, 1998. On May 5, 1999, petitioner filed a petition for writ of habeas corpus in the Siskiyou County Superior Court. That petition was denied on May 25, 2000.
On May 18, 1999, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California. That petition was transferred to this court on July 2, 1999 and assigned Case No. CIV S-99-1466 WBS JFM P. On June 2, 2000, with no petition pending in any state court, and with no petition ever having been filed in the California Supreme Court, Case No. CIV S-99-1466 WBS JFM P was dismissed by this court as barred by the statute of limitations.
Then, on August 28, 2000, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. That petition was denied on January 30, 2001. On February 26, 2001, petitioner filed the instant petition, Case No. CIV. S-01-0384 WBS JFM P. Respondent filed a motion to dismiss in this case on June 28, 2001, arguing that: 1) the instant petition is barred by the statute of limitations; and 2) the instant petition is a second or successive petition and therefore must be dismissed because petitioner has not obtained authorization to proceed from the Court of Appeals for the Ninth Circuit. The magistrate judge, by order dated November 9, 2001, has recommended that the motion to dismiss be denied on both grounds.
II. Discussion
A. Statute of Limitations
Respondent concedes that this court is bound to follow the tolling rule set forth by the Court of Appeals for the Ninth Circuit in Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (May 1, 2000) and restated in Saffold v. Newland, 224 F.3d 1087 (9th Cir. July 17, 2000), opinion amended and superseded on denial of rehearing, 250 F.3d 1262 (9th Cir. May 23, 2001), cert. granted, 122 S.Ct. 393 (Oct. 15, 2001).
The applicable statue of limitations in this case is the one-year period set forth in Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEPDA"). See 28 U.S.C. § 2244 et seq. The statute further provides that [t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The Nino and Saffold opinions dictate how this court must interpret the term "pending" for purposes of calculating a tolling period under the AEDPA.
In Nino v. Galaza, the court held that AEDPA's one-year statute of limitations "is tolled from the time the first habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." 183 F.3d at 1006. The court further crystallized that principle in Saffold v. Newland. There, the court reversed the district court and found that "Saffold had a state collateral proceeding `pending' within the meaning of AEDPA's tolling provision,. . . during the entire period from the time he filed his state petition in the trial court until the California Supreme Court denied his habeas petition," including during a four and one-half month period between the Court of Appeals' denial of his petition and his filing of a petition in the California Supreme Court. 250 F.3d at 1265-1266.
The Saffold holding has been the subject of some judicial criticism.See e.g., Fernandez v. Sternes, 227 F.3d 977, (7th Cir. 2000) ("it is not sensible to say that the petition continues to be `pending' after the time for further review has expired without action to continue the litigation. . . Saffold implements a make-believe approach, under which petitions were continuously pending whenever a state court allows an untimely filing. We prefer reality. . .[a petition] is not `pending' long before its filing. We decline to follow Saffold."); Robinson v. Rick, 163 F. Supp.2d 155 (E.D. N Y 2001) ("to say that a post-conviction motion remains `pending' even when there is no undecided application before any court, would distort the plain meaning of the term"); Welch v. Newland, 267 F.3d 1013, 1018 (9th Cir. 2001) (Gould, J. concurring, noting thatSaffold "operates substantially to frustrate the intent of Congress in imposing a one-year period of limitations period for state prisoners filing federal petitions," and urging that Saffold be reexamined).
The dissent in Saffold disagreed with the majority's interpretation of Nino v. Galaza, and argued that "[t]he language of Nino expressly contemplated the possibility that the clock would run during periods in which the petitioner was `not properly pursuing his state post-conviction remedies.'" Saffold v. Newland, 250 F.3d at 1270 (O'Scannlain, J., dissenting) (citing Nino v. Galaza, 183 F.3d at 1006 n. 4). The dissent also noted that Nino expressly exempts from its holding instances in which "the California state courts have dismissed a state habeas petition as untimely because the petitioner engaged in substantial delay in asserting habeas claims," and further argues that a four-and-one-half month delay falls "substantially outside the period that Nino tolls for `properly pursu[ed]' state post-conviction remedies." Id.
In this case, application of the Saffold rule creates the very "there and not there at the same time" Cheshire-cat-like statute of limitations that the Seventh Circuit warned of in Fernandez v. Sternes, 227 F.3d at 980-981. In June of 2000, nine months having passed after petitioner's conviction became final and before he filed his first state habeas petition, 25 months having passed since petitioner's first state habeas petition was denied by the California Court of Appeals, and with no petition having been filed with the California Supreme Court, this court adopted the recommendation of the magistrate judge and ruled that petitioner's district court petition was barred by the statute of limitations.
The Fernandez opinion sternly criticized the Saffold holding specifically because it left open the possibility that a federal petition could be dismissed as untimely with no state Supreme Court petition pending, then, after a petition was later filed with the state Supreme Court, a subsequent federal petition would have to be deemed timely by operation of Saffold's "retroactive change in timeliness." Id.
Petitioner's first state petition was originally filed in Del Norte County Superior Court and was denied by the California Court of Appeals First Appellate District on April 21, 1998. Petitioner's second state petition was filed in Siskiyou County Superior Court on May 5, 1999 and was denied by that court on May 25, 2000. Ninety-five days later, petitioner filed an original petition in the California Supreme Court.
The court's order, filed June 2, 2000, Case No. CIV S-99-1466 WBS JFM P, cited Nino v. Galaza for the rule that "the statute is tolled from the time the first habeas petition is filed until the California Supreme Court rejects the collateral challenges" and found that "since petitioner never presented his collateral challenges to the California Supreme Court, the tolling provisions of [ 28 U.S.C. § 2244] do not apply."
Approximately three months after the court's June 2000 order, however, petitioner finally filed a petition for writ of habeas corpus in the California Supreme Court. Thus, applying Saffold's rule, though petitioner's first district court petition, filed 21 months earlier, was barred by the statute of limitations, petitioner's second district court petition is not. According to Saffold, now that petitioner has brought his habeas claims to the highest court of the state, the entire period during which he "pursued" state collateral review is tolled, including those lengthy periods during which he did nothing and had no petition before any state court. The statute in this case must therefore be tolled from January 16, 1998 to January 30, 2001.
Other courts have applied Saffold to toll the statute of limitations for similarly long periods of time, a result which at first seems contrary to the stated purpose of AEDPA. See e.g., Welch v. Newland, 267 F.3d at 1015(reversing the district court's ruling that the statute was not tolled between the date a petition was denied by the California Superior Court and the date an original habeas petition was filed with the California Supreme Court, and holding that the four-and-a-half year gap between those petitions was tolled underSaffold); see also Romero v. Roe, 130 F. Supp.2d 1148 (C.D. Cal 2001) (tolling the statute to cover a 15 month period of state post-conviction litigation). The Court of Appeals for the Fifth Circuit, however, recently noted that results such as the seemingly illogical one in the instant case are possible, but not inconsistent with "Congress's intent to encourage exhaustion of state remedies." See Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001) (noting that "[a] state court's subsequent decision to allow review may toll the time relating directly to the application, but it does not change the fact that the application was not pending prior to the application").
276 days passed between the finality of petitioner's conviction on April 15, 1997 and the filing of his first state habeas petition on January 16, 1998. The instant district court petition was filed on February 26, 2001, 27 days after the tolling period ended on January 30, 2001. Implementing the tolling period mandated by Saffold, only the sum of those two periods, a total of 303 days, may be counted against the one-year statute of limitations. The court will therefore, applyingSaffold, adopt the magistrate judge's finding that, though the prior district court petition was barred by the statute of limitations, the instant petition is not.
This court is bound to follow Ninth Circuit authority until such precedent is overruled by an intervening U.S. Supreme Court opinion, by an en banc panel of the circuit, or by a controlling Act of Congress. United States v. Edwards, 13 F.3d 291, 294 (9th Cir. 1993).
B. Second or Successive Petition
If this is a second or successive petition, pursuant to 28 U.S.C. § 2244(b), petitioner must obtain authorization from the Court of Appeals for the Ninth Circuit before he can proceed with this petition. According to the rule set forth in Slack v. McDaniel, a petition will not be deemed a "second or successive" petition for the purposes of Section 2244 where the prior petition "was not adjudicated on the merits." See Green v. White, 223 F.3d 1001, 1002 n. 1 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 485-486 (2000) ("A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.")
In this case, as discussed above, petitioner's first district court habeas petition was dismissed on the ground that it was barred by the statute of limitations. The law is clear that a dismissal based on the statute of limitations is an adjudication of the merits of the claim. See Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330 n. 3 (9th Cir. 1981) ("[a] judgment based on the statute of limitations is `on the merits'", citing Mathis v. Laird, 457 F.2d 926, 927 (5th Cir. 1972),cert. denied, 409 U.S. 871 (1972)). See also Plaut v. Spendthrift Farm, 514 U.S. 211, 228 (1995) ("The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.") (emphasis added) (citing Fed.R.Civ.P. 41(b) and United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916)). Thus, because petitioner's prior district court petition was adjudicated on its merits, petitioner's instant petition is a "second or successive petition" for purposes of 28 U.S.C. § 2244(b).
In his November 9, 2001 findings and recommendations, the magistrate judge cited Green v. White and Slack v. McDaniel for the general rule that a petition is not a "second or successive petition" unless the prior petition was "adjudicated on the merits." The magistrate judge also citedStewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998) (where claims are not adjudicated on merits in first petition dismissed for "technical procedural reasons," subsequent petition is not "second or successive"). None of those cases, however, dealt with a prior dismissal on statute of limitations grounds. Each addressed a prior dismissal that was not a final judgment on the merits of the claim. See Green, 223 F.3d at 1002 n. 1 (prior petition dismissed for failure to exhaust state remedies);Slack, 529 U.S. 485-486 (prior petition dismissed for failure to exhaust state remedies); and Stewart, 523 U.S. at 640-644 (prior petition dismissed as premature, a dismissal which the Court analogized to dismissal for failure to exhaust).
It is not difficult to understand why the magistrate judge reasoned as he did, given the circumstances of this case. The "finality" of a statute of limitations dismissal is the very reason courts have treated such dismissals as judgments "on the merits." See e.g., Plaut 514 U.S. at 228. On the facts of this case, where application of the Saffold rule has effectively destroyed that finality, it may make more sense to create a category of "technical procedural" dismissals especially for statute of limitations dismissals that later turn out to have been "premature." To do so, however, would be contrary to the weight of case law recognizing statute of limitations dismissals as judgments on the merits. Moreover, as Judge Gould noted in his concurring opinion in Welch v. Newland, remedying the problems presented by Saffold is not a task properly undertaken by this court. See 267 F.3d at 1018.
As discussed above, the law is clear that a dismissal on statute of limitations grounds, unlike the prior dismissals in Green, Slack, andStewart, operates as a final judgment on the merits.
28 U.S.C. § 2244(b)(3)(A) mandates that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Then, at Section 2244(b)(4), the statute requires that "[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." Because the instant petition is a second or successive petition filed without the requisite authorization and showing, it is therefore subject to dismissal.
IT IS THEREFORE ORDERED that respondent's motion to dismiss be, and the same is HEREBY GRANTED.