(HC) Turner v. C. Koeing ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHARLES EDWARD TURNER, Case No. 1:19-cv-00495-LJO-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 12 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS 13 C. KOENIG,1 ORDER DIRECTING CLERK OF COURT 14 Respondent. TO AMEND CAPTION 15 (ECF No. 10) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On May 5, 2008, Petitioner was convicted by a jury in the Fresno County Superior Court 22 of two counts of second-degree robbery with personal use of a firearm. Petitioner was sentenced 23 to an imprisonment term of sixty-five years to life. (LD2 1, 2). On September 17, 2009, the 24 California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). On 25 December 17, 2009, the California Supreme Court denied the petition for review. (LDs 3, 4). 26 Thereafter, Petitioner filed three state habeas petitions, which were all denied. (LDs 5–10). 27 1 The correct spelling of Respondent’s last name is Koenig. (ECF No. 10 at 1 n.1). 1 On April 12, 2019,3 Petitioner constructively filed the instant federal petition for writ of 2 habeas corpus. (ECF No. 1). On June 21, 2019, Respondent filed a motion to dismiss the petition 3 as untimely. (ECF No. 10). Petitioner filed an opposition, and Respondent filed a reply. (ECF 4 Nos. 12, 13). Petitioner filed a surresponse without leave of the Court.4 (ECF No. 14). 5 II. 6 DISCUSSION 7 A. Statute of Limitations 8 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 9 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas 10 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. 11 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the 12 enactment of AEDPA and is therefore governed by its provisions. 13 AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 14 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides: 15 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the 16 judgment of a State court. The limitation period shall run from the latest of – 17 (A) the date on which the judgment became final by the 18 conclusion of direct review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing an application 20 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented 21 from filing by such State action; 22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 23 newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 24 25 3 Pursuant to the mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the 26 prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). The 27 mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010). Respondent applies the mailbox rule in the motion to dismiss. (ECF No. 10 at 2 n.2). 1 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 2 exercise of due diligence. 3 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the 4 pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 5 6 28 U.S.C. § 2244(d). 7 In most cases, the limitation period begins running on the date that the petitioner’s direct 8 review became final or the expiration of the time for seeking such review. However, in the 9 surresponse, Petitioner appears to argue that the limitation period began to run on a later date 10 when he discovered new evidence. (ECF No. 14 at 1–2).5 Although unclear, it appears that the 11 newly discovered evidence consists of transcripts from hearings held in the superior court on 12 April 11, 2007 and February 28, 2008. (ECF No. 14 at 5–10). 13 Section 2244(d)(1)(D) provides that the one-year limitation period begins to run from 14 “the date on which the factual predicate of the claim or claims presented could have been 15 discovered through the exercise of due diligence,” 28 U.S.C. § 2244(d)(1)(D), “not when [the 16 factual predicate] actually was discovered,” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 17 2012) (emphasis added). “Section 2244(d)(1)(D) provides a petitioner with a later accrual date 18 than section 2244(d)(1)(A) only if vital facts could not have been known by the date the 19 appellate process ended.” Id. (internal quotation marks and citations omitted). Here, however, 20 Petitioner’s claims are not based on facts of which Petitioner was unaware or facts that could not 21 have been discovered through due diligence almost a decade after his conviction. Petitioner was 22 present at the hearings in question. Therefore, § 2244(d)(1)(D) is not applicable. 23 Based on the foregoing, § 2244(d)(1)(A) is applicable in the instant case and the 24 limitation period began running on the date that Petitioner’s direct review became final. Here, the 25 judgment became final on March 17, 2010, when the ninety-day period to file a petition for writ 26 of certiorari in the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 27 1159 (9th Cir. 1999). The one-year limitation period commenced running the following day, 1 March 18, 2010, and absent tolling, was set to expire on March 17, 2011. See Patterson v. 2 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). 3 B. Statutory Tolling 4 The “time during which a properly filed application for State post-conviction or other 5 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 6 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). In the instant case, the limitation 7 period expired before Petitioner filed his first state habeas petition on January 18, 2018, and 8 § 2244(d) “does not permit the reinitiation of the limitations period that has ended before the 9 state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, 10 the instant federal petition is untimely unless Petitioner establishes that equitable tolling is 11 warranted. 12 C. Equitable Tolling 13 The limitations period also is subject to equitable tolling if the petitioner demonstrates 14 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 15 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 16 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden 17 of alleging facts that would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. 18 Here, however, Petitioner has not made any showing that he is entitled to equitable tolling. 19 Therefore, the instant federal petition was not timely filed, and dismissal is warranted on this 20 ground. 21 III. 22 RECOMMENDATION & ORDER 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Respondent’s motion to dismiss (ECF No. 10) be GRANTED; and 25 2. The petition for writ of habeas corpus be DISMISSED as untimely. 26 Further, the Clerk of Court is DIRECTED to amend the caption to reflect “C. Koenig” as 27 Respondent. 1 This Findings and Recommendation is submitted to the assigned United States District 2 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 | Rules of Practice for the United States District Court, Eastern District of California. Within 4 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 5 | written objections with the court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 7 | objections shall be served and filed within fourteen (14) days after service of the objections. The 8 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 9 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 10 | the specified time may waive the right to appeal the District Court’s order. Wilkerson_v. 11 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 12 | Cir. 1991)). 13 14 IT IS SO ORDERED. OF. ee 15 | Dated: _ August 2, 2019 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28