Opinion
Silus Mardel Valson, Petitioner, Pro se, Represa, CA.
For People of the State of Calif., Respondent: Shira Seigle Markovich, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
DECISION AND ORDER
CARLA M. WOEHRLE, United States Magistrate Judge.
For the reasons stated below, the petition for habeas corpus relief is denied and this action is dismissed with prejudice as time-barred.
I. PROCEDURAL HISTORY
Silus Mardel Valson (" Petitioner"), a pro se prisoner in state custody, challenges his conviction in California Superior Court, Los Angeles County, Case No. BA321123.
On April 3, 2009, Petitioner pled guilty to twelve counts of second degree robbery and two counts of attempted robbery, in violation of California Penal Code (" PC") sections 211 and 211/664, respectively. [Petition for Writ of Habeas Corpus (" Pet.") at 2; Supplemental Lodged Document (" Supp. Lodg.") 2 at 3-11.] In addition, Petitioner admitted that he personally used a firearm in the commission of each offense within the meaning of PC 12022.53(b). [Supp. Lodg. 2 at 11.] Petitioner was sentenced the same day to state prison for an aggregate term of nineteen years and four months. [Pet. at 2; Supp. Lodg. 2 at 14.] Petitioner did not appeal.
On February 21, 2013, Petitioner filed a motion in the Los Angeles Superior Court for modification of his sentence. [Lodged Document (" Lodg.") 3.] The superior court construed the motion as a request for recalculation of Petitioner's jail credit; so construed, the court denied the motion on the ground that Petitioner " waived two years and four months of presentence custody time at the time he was sentenced." [Supp. Lodg. 3.]
Petitioner filed a habeas petition in the Los Angeles Superior Court on June 6, 2013, in which he challenged the use of a firearm enhancement and the waiver of his presentence credits. [Lodg. 4.] The court denied the petition on June 17, 2013, in a reasoned order. [Pet., Ex. A; Lodg. 2 at 11.]
Petitioner constructively filed identical habeas petitions in the California Court of Appeal and Supreme Court, on June 28, and July 28, 2013, respectively. [Lodg. 5, 7.] On July 11, 2013, the court of appeal denied relief on the ground that " [P]etitioner has failed to allege sufficient facts to justify relief. ( In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793.)." [Pet. Ex. B; Lodg. 6.] The California Supreme Court summarily denied relief on October 23, 2013. [Pet., Ex. C.]
On November 27, 2013, Petitioner constructively filed the instant Petition, in which he alleges the same claims raised on state collateral review. [Docket no. 1.]. Respondent filed a Motion to Dismiss the Petition (" MTD") and lodged supporting documents on March 6, 2014, on the grounds that the Petition failed to name a proper Respondent, is unexhausted, and untimely. [Docket No. 12.] On April 7, 2014, Petitioner filed opposition to the motion to dismiss (" Opp. MTD") and lodged a First Amended Petition (" FAP"), substituting Jeffrey Beard, Secretary of the California Department of Corrections and Rehabilitation (" CDCR"), as Respondent. [Docket nos. 18, 20.] In an order filed on April 22, 2014, the court ordered the FAP filed, denied Respondent's motion to dismiss as moot insofar as the motion was based on failure to name a proper Respondent, and ordered Respondent to lodge additional documents. [Docket no. 19.] On May 2, 2014, Petitioner filed a document entitled " Initial Disclosure, " which the court has construed as a supplement to the First Amended Petition. [Docket no. 21.] Respondent lodged supplemental documents, pursuant to the court's April 22, 2014 order, on June 6, 2014. [Docket no. 24.] Both Petitioner and Respondent have consented to proceed before the Magistrate Judge. [Docket nos. 2, 14.]
DISCUSSION
An application for federal habeas corpus relief on behalf of a person in custody pursuant to a state court judgment, filed after enactment of the Antiterrorism and Effective Death Penalty Act (" AEDPA") on April 24, 1996, is subject to the one-year statute of limitation codified at 28 U.S.C. § 2244(d). See Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Wixom v. Washington, 264 F.3d 894, 895 (9th Cir. 2001). For petitioners whose convictions became final after AEDPA was enacted, the one-year limitation period runs beginning on the latest of four alternative dates:
The limitation period is calculated in light of Fed.R.Civ.P. 6(a). Particularly, " in computing any time period . . .: exclude the day of the event that triggers the period. . . and include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday or legal holiday." Fed.R.Civ.P. 6(a).
(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.
In most cases, the controlling provision is § 2244(d)(1)(A). Under this subsection, a judgment becomes final either when (1) the highest state court denies relief on direct review, and the petitioner files a petition for writ of certiorari in the United States Supreme Court, in which case the judgment becomes final when the Supreme Court issues a decision or ruling; or (2) the highest state court denies relief on direct review, and the petitioner does not file a certiorari petition, in which case the judgment becomes final when the deadline for filing such a petition expires, ninety days after the decision by the highest state court; or (3) the petitioner does not seek direct review from the highest state court, in which case the judgment becomes final when the time for seeking such review expires, as determined by state law. Wixom, 264 F.3d at 897-98.
Under 28 U.S.C. § 2244(d)(2), the running of the one-year limitation period may be tolled while a " properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Such " statutory tolling" applies to the time during which a properly filed state collateral proceeding was " pending" before the state court -- that is, while it is actually under consideration before one state court and during a " gap" between one state court's decision and the proper filing of a timely application in a higher state court. See Evans v. Chavis, 546 U.S. 189, 193, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006); Carey v. Saffold, 536 U.S. 214, 219-25, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); see also Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)(statutory tolling generally applies during " one full round of review" while a California petitioner is attempting, without delay and through proper use of state court procedures, to exhaust state court remedies with respect to a particular postconviction application (citing Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)). A round of state collateral review is completed when the decision of the highest state court becomes final. See Saffold, 536 U.S. at 220.
Statutory tolling does not apply to a period between the end of direct review and the beginning of state collateral review, see Nino, 183 F.3d at 1006; or during a gap between the end of one round of review and the beginning of another, Delhomme v. Ramirez, 340 F.3d 817, 821 (9th Cir. 2003)(per curiam), abrogated on other grounds by Evans, 546 U.S. at 198-99; or between the end of state collateral proceedings and the filing of a federal habeas proceeding, see Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). Nor does the tolling provision restart the running of the limitation period if it expired before state collateral review began. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).
The AEDPA limitation period is also subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Equitable tolling is warranted only if the petitioner has been pursuing his rights diligently and extraordinary circumstances beyond the petitioner's control precluded timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)(" [A] [petitioner] seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.")); see also Randle v. Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). The cause of the untimeliness must be the " extraordinary circumstances, " Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)(citation omitted), rather than petitioner's own lack of reasonable diligence. See Doe v. Busby, 661 F.3d 1001, 1012-13 (9th Cir. 2011)(" The purpose of requiring a habeas petitioner to show diligence is to verify that it was the extraordinary circumstance, as opposed to some act of the petitioner's own doing, which caused the failure to timely file."); see also Holland, 560 U.S. at 653 (noting that " [t]he diligence required for equitable tolling is 'reasonable diligence, '. . . not 'maximum feasible diligence'" (internal quotation marks and citations omitted)).
" '[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule, '" and a petitioner " 'bears the burden of showing that this extraordinary exclusion should apply to him.'" Spitsyn, 345 F.3d at 799 (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)(" To apply the doctrine in 'extraordinary circumstances' necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances 'stood in his way' suggests that an external force must cause the untimeliness, rather than . . . merely 'oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling'" (quoting Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir. 2008)).
Here, Petitioner does not allege, nor does the record support, an applicable delayed starting date for the statutory limitation period based on 28 U.S.C. § 2244(d)(1)(B)-(D). Accordingly, pursuant to 28 U.S.C. § 2244(d)(1)(A), the limitation period commenced when Petitioner's conviction became final at the expiration of the time within which to file an appeal, which was June 2, 2009, sixty days after sentencing. Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012)(citing Cal. R. Ct., Rule 8.308). Absent tolling, the statute then expired one year later on June 2, 2010, long before November 27, 2013, the earliest date on which the present Petition may be construed as filed. Because Petitioner did not commence state post-conviction review until February, 2013, after the limitation period expired, statutory tolling is not available. Ferguson, 321 F.3d at 823; Green, 223 F.3d at 1003. Therefore, unless Petitioner can demonstrate that he is entitled to equitable tolling for a period of nearly two and a half years, the Petition is subject to dismissal as time-barred.
As set out above, equitable tolling is warranted only if Petitioner establishes that extraordinary circumstances beyond his control made it impossible for him to file the instant Petition on time. Petitioner does not claim, nor does the record otherwise suggest, the existence of any barrier to timely filing that could satisfy this demanding standard.
Moreover, there is no indication that Petitioner has diligently pursued his rights. Rather, Petitioner attempts to justify the delay in filing the instant Petition on the ground that there is no specific deadline for filing a habeas petition in California, and on the further ground that, once he commenced state habeas review, he proceeded diligently in state court and in filing the instant Petition. [Opp. MTD at 16.] The Ninth Circuit in Ferguson, however, foreclosed this argument as justification for avoiding the effect of the AEDPA limitation bar. Id., 321 F.3d at 823 (irrespective of whether a state affords a longer statute of limitation for seeking post conviction relief, " [i]f . . . a prisoner also seeks federal relief, he must conform his petition to the federal rules"); see also Denny v. Diaz, No. 2: 13-cv-0489 TLN AC P, 2014 WL 111165, at *4 (E.D. Cal. January 9, 2014)(" The fact that California state law provides no specific statute of limitations does not change the fact that Congress has set a one year statute of limitations on the filing of federal habeas corpus petitions."); Sanger v. Yates, No. C 09-01474 SBA (PR), 2010 WL 3490183, at *2 (N.D. Cal. September 2, 2010)(" '[AEDPA] 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." (quoting Ferguson, id.)).
Ground One of the FAP challenges the finding (based on his admission) that Petitioner personally used a firearm during the commission of the offenses, within the meaning of PC section 12022.53(b). Particularly, Petitioner contends that his admissions were unconstitutional because he did not know that this provision required that a violation of PC section 186.22(b)(offense committed for the benefit of a criminal street gang) be pled and proved or admitted. [FAP at 5, Ex. E.] Liberally construed, it is possible to infer from this that Petitioner contends that he is actually innocent of the firearm enhancements. A claim of " actual innocence" may establish a " gateway" through which a habeas petitioner may pass to overcome the expiration of the statute of limitation and obtain federal habeas review of otherwise timebarred constitutional claims. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013 )(citing Schlup v. Delo, 513 U.S. 298, 329, 332, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)); Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011)(" [A] credible claim of actual innocence constitutes an equitable exception to the AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits."). Petitioner does not qualify for this exception for two reasons. Foremost, section 12022.53(b) makes no mention of the street gang allegation; that allegation is referred to in a separate section, 12022.53(e)(1), which Petitioner was not charged with. Second, Petitioner does not challenge his admission that he did, in fact, personally use a firearm during the commission of the charged offenses. Accordingly, there is no basis in the record for invoking the actual innocence exception to the limitation bar.
ORDER
For the reasons discussed above, it is hereby ORDERED that Respondent's motion to dismiss the Petition (docket no. 12) is granted, and that judgment be entered denying the petition for habeas corpus relief and dismissing this action with prejudice as timebarred.
In light of this determination, the court need not address the issue of exhaustion.
JUDGMENT
IT IS ADJUDGED that the petition for writ of habeas corpus is dismissed, with prejudice, as untimely.