Opinion
No. EDCV 12-0061 CAS (FFM)
01-19-2012
BARRY STREET, Petitioner, v. BRENDA CASH, Warden, Respondent.
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS TIME-BARRED AND/OR UNEXHAUSTED
Petitioner, a prisoner in state custody proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus ("Petition" or "Pet.") no earlier than November 9, 2011. Petitioner challenges a 1996 conviction and sentence for "manufacturing/child endangerment/poss. of firearm." (Pet. at 2.) Petitioner alleges that he did not seek direct review of his conviction with the California Supreme Court. (Pet. at ¶ 4.) Petitioner also alleges that he filed a habeas petition in state court (apparently Los Angeles County Superior Court) on October 3, 2011 and that the petition was denied on October 31, 2011. (Id. at ¶6.)
A pro se prisoner's relevant filings may be construed as filed on the date they were submitted to prison authorities for mailing, under the prison "mailbox rule" of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988).
The Court received the Petition on January 11, 2012. However, petitioner's signature on the Petition is dated October 19, 2011 and a written statement on the envelope states that petitioner "sent out" the Petition on November 9, 2011, but that the envelope was damaged by the Post Office and, apparently, returned. Petitioner states that he sent the Petition out again on December 19, 2011.
Petitioner's allegations notwithstanding, the Court has reviewed the web site for the California Supreme Court and discovered that on November 3, 1997, petitioner filed with the California Supreme Court a petition for review of the Court of Appeal decision affirming his conviction. The California Supreme Court denied review on December 10, 1997.
See http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm? dist=0&doc_id=1797247&doc_no=S065507
1. LIMITATIONS PERIOD FOR FEDERAL HABEAS PETITIONS
The present proceedings were initiated after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Accordingly, the AEDPA's timeliness provisions apply, including a one-year limitations period which is subject to both statutory and equitable tolling. See 28 U.S.C. § 2244(d)(1). For those prisoners whose convictions became final post-AEDPA, the one-year period starts running from the latest of four alternative dates set forth in 28 U.S.C. § 2244(d)(1)(A)-(D). See, e.g., Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001). Where, as here, the challenged judgment was affirmed by the state's highest court, the period of direct review ends either when the petitioner failed to file a certiorari petition in the United States Supreme Court and the 90-day period for doing so has expired, or when the Supreme Court has ruled on a filed petition. See Clay v. United States, 537 U.S. 522, 527-32 and ns. 3-4, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003); Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).
In this case, petitioner does not appear to have filed a certiorari petition in the United States Supreme Court. (See Petition.) Thus, under section 2244(d)(1)(A), petitioner's conviction became final 90 days after the denial of the petition for review by the California Supreme Court. See Clay, 537 U.S. at 527-32 and ns.3, 4; 28 U.S.C. § 2101(d); Sup. Ct. R. 13.1. Although petitioner states that he did not seek review before the California Supreme Court, the California Supreme Court actually denied petitioner's petition for review on direct review on December 10, 1997. Therefore, petitioner's conviction became final on March 10, 1998. Accordingly, the one-year limitations period expired on March 10, 1999. Patterson, 251 F.3d at 1245-47. Because petitioner did not initiate the current proceedings until no earlier than November 9, 2011, the present action is untimely, absent statutory or equitable tolling. See 28 U.S.C. § 2244(d)(1); Fed. R. Civ. Proc. 6(a).
2. STATUTORY TOLLING
Title 28 U.S.C. § 2244(d)(2) provides that "[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 under this subsection."
The statute of limitations is not tolled between the date on which a judgment becomes final and the date on which the petitioner filed his first state collateral challenge because there is no case "pending." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once an application for post-conviction review commences, it is "pending" until a petitioner "complete[s] a full round of [state] collateral review." Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). "One full round" generally means that the statute of limitations is tolled while a petitioner is properly pursuing post-conviction relief, from the time a California prisoner files his first state habeas petition until the California Supreme Court rejects his final collateral challenge. Carey v. Saffold, 536 U.S. 214, 219-20, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002); see also Nino, 183 F.3d at 1006; Delhomme, 340 F.3d at 819. The period tolled includes the time between a lower court decision and the filing of a new petition in a higher court, as long as the intervals between the filing of those petitions are "reasonable." Delhomme, 340 F.3d at 819 (citing Biggs, 339 F.3d at 1048 n.1).
Here, petitioner does not appear to be entitled to any statutory tolling. Petitioner alleges that he filed a state habeas petition (case no. WHCSS 1100436) in the California Superior Court. Petitioner alleges that he filed that petition on October 3, 2011. (Pet. at 3.)
By the time petitioner filed his state habeas petition, over 12 years had passed since March 10, 1999, the date on which petitioner's conviction became final. As such, petitioner's state habeas petition could not have tolled the statute of limitations because the limitation period had already expired before he filed that petition. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of a limitations period that has ended before the state petition was filed"); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that state habeas petition filed after expiration of AEDPA limitation period could not toll limitation period "because the limitations period had already run"); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (application of section 2244(d)(2) "'tolling provision does not . . . 'revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run'") (citation omitted).
3. EQUITABLE TOLLING
The AEDPA limitations period also may be subject to equitable tolling, if the petitioner shows that extraordinary circumstances beyond the petitioner's control made timely filing of a federal habeas petition impossible and the petitioner has acted diligently in pursuing his rights. Holland v. Florida, __ U.S. _, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010). The petitioner bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Petitioner attached correspondence to his Petition asking for tolling because he did not have access to "up-to-date" legal materials until recently. However, this statement does not demonstrate that extraordinary circumstances beyond petitioner's control made timely filing of a federal habeas petition impossible and that petitioner has acted diligently in pursuing his rights. Petitioner wholly fails to explain what "up-to-date" materials were unavailable and why they were necessary to prepare his Petition. Moreover, petitioner has made no showing of diligence, therefore, petitioner has not demonstrated that he is entitled to equitable tolling.
4. FAILURE TO EXHAUST
A. The Court may not consider a petition that includes unexhausted claims.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the petitioner has fully exhausted available state court remedies with respect to each of the issues presented, or, unlike the instant case, the state has expressly waived the exhaustion issue. See 28 U.S.C. §§ 2254(b), (c); see also O'Sullivan v. Boerckel, 526 U.S. 838, 839, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam). State remedies have been exhausted if a petitioner has "fairly presented" each federal claim to the highest state court with jurisdiction to review it, and a claim has been "fairly presented" if a petitioner has set forth both the operative facts and the federal legal theory on which the claim is based. See, e.g., Duncan, 513 U.S. at 365-66; Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). Thus, "for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996); Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). A petitioner may also alert the state court to the federal basis of his claim by citing "a case deciding such a claim on federal grounds . . . ." Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004); Davis, 511 F.3d at 1011.
The petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). However, the Ninth Circuit has held that, for purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. See Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003).
B. The Petition appears to be unexhausted.
Petitioner incorrectly states that he has not presented any claims to the California Supreme Court. (See Pet. at ¶¶ 4 and 6.) As shown above, however, petitioner did seek review with the California Supreme Court in 1997. It may be that the state sentencing claim which he presents herein was presented to the California Supreme Court in 1997. However, from the face of the Petition, it appears that petitioner's claim is unexhausted. Moreover, petitioner has not suggested that his claim is based on federal law. It appears from the Petition that petitioner's sole claim is based only on an alleged misapplication of state sentencing law. Unless petitioner presented a federal legal theory to the California Supreme Court, the claim is unexhausted.
C. Neither exception to the exhaustion requirement is applicable.
AEDPA provides that the Court may consider an unexhausted claim if "there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). Thus, if it were clear here that petitioner's unexhausted claim was procedurally barred under state law, then the exhaustion requirement would be satisfied. See Castille v. Peoples, 489 U.S. 346, 351-52, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996). However, it is not "clear" here that the California Supreme Court would hold that petitioner's unexhausted claim is procedurally barred under state law, if petitioner were to raise it in a habeas petition to the California Supreme Court (which, being an original proceeding, is not subject to the same timeliness requirement as a petition for review of a California Court of Appeal decision). See, e.g., In re Harris, 5 Cal. 4th 813, 825 (1993) (granting habeas relief where petitioner claimed sentencing error, even though the alleged sentencing error could have been raised on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405 (1952) (noting that claims that fundamental constitutional rights have been violated may be raised by state habeas petition). The Court therefore concludes that there is neither an absence of available state corrective process nor an existence of circumstances that render such process ineffective.
5. ORDER TO SHOW CAUSE
Because the Petition does not demonstrate any basis for tolling the statute and it appears that the claim is unexhausted, the Court orders petitioner to show cause in writing within 15 days of the date of this order why the Petition should not be dismissed as time-barred and/or dismissed for failure to exhaust. If petitioner fails to provide a timely response to this order, the Court will recommend that the Petition be dismissed as time-barred and/or for failure to exhaust.
IT IS SO ORDERED.
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FREDERICK F. MUMM
United States Magistrate Judge