(HC) Miles v. Sullivan ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENNEL EDWARD MILES, JR., No. 2:19-CV-0377-KJM-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 W.J. SULLIVAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to 19 dismiss (ECF No. 10). Respondent contends the petition is untimely. 20 21 I. FACTUAL BACKGROUND 22 Petitioner Gennel Edward Miles, Jr., was convicted in Sacramento County 23 Superior Court of first-degree murder, robbery in concert, kidnaping, carjacking, and arson. See 24 ECF No. 1, pg. 1; ECF No. 17, pg. 2. On April 19, 2013, he was sentenced to an indeterminate 25 state prison term of life without the possibility of parole on the murder conviction and a 26 determinate state prison term of twenty-seven years and eight months on the remaining 27 convictions. Id. On September 7, 2016, the California Court of Appeal struck the arson 28 conviction and associated prison term and affirmed the judgment as modified. See ECF No. 1, pg. 1 2; ECF No. 17, pg. 2. The California Supreme Court denied review on December 14, 2016. See 2 ECF No. 1, pg. 2; ECF No. 17, pg. 2. 3 Petitioner then filed three pro se state post-conviction collateral challenges, all 4 petitions for writs of habeas corpus. Id. 5 First Action Sacramento Country Superior Court. Filed December 12, 2017. 6 Denied January 9, 2018. 7 Second Action California Court of Appeal. Filed April 2, 2018. 8 Denied April 13, 2018. 9 Third Action California Supreme Court. Filed June 10, 2018. 10 Denied December 12, 2018. 11 Petitioner’s federal petition was filed on February 14, 2019. 12 13 II. DISCUSSION 14 Federal habeas corpus petitions must be filed within one year from the later of: 15 (1) the date the state court judgment became final; (2) the date on which an impediment to filing 16 created by state action is removed; (3) the date on which a constitutional right is newly- 17 recognized and made retroactive on collateral review; or (4) the date on which the factual 18 predicate of the claim could have been discovered through the exercise of due diligence. See 28 19 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court 20 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 21 review. See 28 U.S.C. § 2244(d)(1). 22 Where a petition for review by the California Supreme Court is filed and no 23 petition for certiorari is filed in the United States Supreme Court, the one-year limitations period 24 begins running the day after expiration of the 90-day time within which to seek review by the 25 United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 26 Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year 27 limitations period begins to run the day after certiorari is denied or the Court issued a merits 28 decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for 1 review by the California Supreme Court is filed, the conviction becomes final 40 days following 2 the Court of Appeal’s decision, and the limitations period begins running the following day. See 3 Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the 4 conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the 5 limitations period begins running the following day. See Cal. Rule of Court 8.308(a). If the 6 conviction became final before April 24, 1996 – the effective date of the statute of limitations – 7 the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. 8 Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). 9 The limitations period is tolled, however, for the time a properly filed application 10 for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be 11 “properly filed,” the application must be authorized by, and in compliance with, state law. See 12 Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. 13 DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a 14 state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions 15 and the failure to comply with those time limits precludes a finding that the state petition is 16 properly filed). A state court application for post-conviction relief is “pending” during all the 17 time the petitioner is attempting, through proper use of state court procedures, to present his 18 claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered 19 “pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549 20 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari 21 petition to the Supreme Court was pending). Where the petitioner unreasonably delays between 22 state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 23 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as 24 untimely, the federal court must independently determine whether there was undue delay. See id. 25 at 226-27. 26 /// 27 /// 28 /// 1 There is no tolling for the interval of time between post-conviction applications 2 where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 3 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no 4 tolling for the period between different sets of post-conviction applications. See Biggs v. 5 Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct 6 review and the filing of a state post-conviction application does not toll the limitations 7 period. See Nino, 1983 F.3d at 1006-07. 8 A. The Limitations Period Begins 9 Here, petitioner did not seek certiorari in the United States Supreme Court 10 following denial of his petition for review by the California Supreme Court on December 14, 11 2016. Thus, the one-year limitations period began to run on March 14, 2017 – the day following 12 expiration of the 90-day period following denial of review by the California Supreme Court 13 within which to file a certiorari petition. See Patterson, 251 F.3d at 1246. Absent tolling, 14 petitioner’s federal habeas petition was due by March 13, 2018. 15 B. Tolling 16 As respondent correctly notes, petitioner is not entitled to any tolling for the time 17 between the date direct review became final on March 13, 2017, and the date petitioner’s first 18 state post-conviction habeas action was filed on December 12, 2017, because no state court 19 action was pending during this time period. See 28 U.S.C. § 2244(d)(2). Respondent assumes 20 petitioner is entitled to statutory tolling for the 29-day time period his first state post-conviction 21 action was pending – December 12, 2017 (filed), through January 9, 2018 (denied). Thus, by the 22 time petitioner’s first state court post-conviction action was denied, 273 days of the 1-year 23 limitations period had passed. 24 Citing Carey, 536 U.S. at 201, respondent contends that the limitations period was 25 not tolled during the time between denial of petitioner’s first state court post-conviction action 26 and the filing of his second state court post-conviction action because petitioner unreasonably 27 delayed 83 days before filing his second post-conviction action. Citing Pace, 544 U.S. at 414, 28 respondent also argues that, because the second post-conviction action was not properly filed 1 and, as such, not “pending” before the state court, petitioner is not entitled to tolling for the time 2 between the filing of the second post-conviction action and the denial of that action. Finally, 3 respondent contends that petitioner is not entitled to any statutory tolling for the time between the 4 denial of the second post-conviction action and the denial of the third state court post-conviction 5 action because the third was also not properly filed in light of the delay in filing the second post- 6 conviction action. 7 Petitioner argues in response that he did not unreasonably delay before filing his 8 second state court post-conviction action and that, in any event, he is entitled to equitable tolling. 9 1. Delay in Filing Second State Court Post-Conviction Action 10 The court finds petitioner’s second state court post-conviction action was 11 untimely due to an unreasonable 83-day delay, that petitioner is not entitled to tolling of the one- 12 year limitations period between denial of the first state court action and filing of the second state 13 court action. Nor is petitioner entitled to tolling for 11 days between the filing of the second state 14 court action and denial of that action, since the second action was not properly filed. 15 Petitioner’s asserts that his 83-day delay in filing his second action was, in-fact, 16 reasonable. Petitioner argues that in Saffold v. Carey, 312 F.3d 1031, 1035–36 (9th Cir. 2002), 17 the 9th Circuit found that four-and-a-half months was not an unreasonable delay to apply for 18 habeas review at a higher state-court level. See ECF No. 17, pg. 5. However, petitioner’s reliance 19 on this case is flawed for multiple reasons. First, upon reviewing that court’s decision, it is clear 20 that the court did not expressly state that four-and-a-half months was a reasonable filing time, but 21 simply that a prior five-year delay in filing the petition was irrelevant to whether the petition was 22 “properly filed” under AEDPA because “California's timeliness rule is not a ‘condition to 23 filing.’” Saffold, 312 F. 3d at 1035-36. Second, the court in Saffold made a point to note that 24 their decision to toll the four-and-a-half-month delay was not meant to provide any bright-line 25 rule for determining what constitutes “unreasonable delay” and that making such a determination 26 was irrelevant to their ruling. Id. at footnote 1. Third, that case has since been overruled by more 27 recent decisions finding that it is clear that “time limits, no matter their form, are ‘filing’ 28 conditions” for purposes of AEDPA. See e.g. Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 1 2005), amended, 439 F.3d 993 (9th Cir. 2006) (italics removed). 2 Taking more recent cases into account, the 9th circuit has clearly made it 3 common practice to hold firm to a thirty- to sixty-day period for filing subsequent state actions, 4 absent a showing of some proper excuse. See Livermore v. Watson, 556 F. Supp. 2d 1112, 5 1118-20 (E.D. Cal. 2008) (holding that the four-and-a-half-month delay in Saffold was not 6 deemed to be reasonable, and that an interval of seventy-eight days between filings was not 7 entitled to statutory tolling since it was not timely) (bold added.); Bennett v. Felker, 635 F. 8 Supp. 2d 1122, 1124-27 (C.D. Cal. 2009) (holding that ninety-three days of unexplained delay 9 in filing petition was “…substantially longer than the thirty or sixty days contemplated by the 10 Supreme Court in Evans, and is unjustified when Petitioner's third petition was nearly identical 11 to the one he filed in the lower court.” (italic removed) (bold added.)); Hunt v. Felker, 2008 12 WL 364995, at *4 (E.D. Cal. Feb. 8, 2008) (seventy-day interval deemed unreasonable and 13 denied statutory tolling (bold added.)). 14 Here, petitioner does not provide any explanation for his delay besides his 15 argument for equitable tolling, which, as discussed below, this court finds unconvincing. Since 16 petitioner unreasonably delayed in filing his second state court post-conviction petition, the 17 court finds petitioner is not entitled to tolling for the interval between denial of the first state 18 court action and the late filing of the second state court action. Nor is petitioner entitled to any 19 tolling for the time between the filing of the second state court action and denial of that action 20 because it was not properly filed under state law. Thus, through the filing of petitioner’s first 21 state court post-conviction action, 273 days of the one-year limitations period had expired and, 22 through the denial of the untimely second state court action, an additional 94 days had expired. 23 2. Equitable Tolling 24 Petitioner’s argument for equitable tolling is unpersuasive. To be entitled to 25 equitable tolling, the petitioner must demonstrate that: (1) he has been diligent in pursuing his 26 rights; and (2) extraordinary circumstances prevented him from filing on time. See Pace v. 27 DiGuglielmo, 544 U.S. 408 (2005). “This is a very high bar, and is reserved for rare cases.” 28 Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). The “petitioner must [] show that the 1 extraordinary circumstances were the cause of his untimeliness and that the extraordinary 2 circumstances made it impossible to file a petition in time.” Ramirez v. Yates, 571 F.3d 993, 3 997 (9th Cir. 2009). 4 Here, petitioner alleges that he was deprived of Priority Legal User (PLU) status 5 for the majority of the period between the denial of his first state action and filing of his 6 second. See ECF No. 14, pg. 2. Specifically, PLU status was denied on February 14, 2018, 7 February 23, 2018, and March 8, 2018. Id. However, as indicated in respondent’s reply, 8 petitioner has not adequately demonstrated the denial of PLU status was the sort of 9 extraordinary circumstance that justifies equitable tolling. Petitioner mentions that, as a result 10 of his PLU denial, he was “forced to complete his habeas petition at the next available yard 11 hour…” ECF No. 14, pg. 3. However, there is no explanation as to how this denial burdened 12 petitioner’s subsequent petition. In fact, it appears that petitioner did in fact have access to the 13 library as a General Legal User (GLU) and that the basis of his equitable tolling argument is 14 that he did not receive as much law library time as he would have liked. See ECF No. 14, pg. 3; 15 ECF No. 18, pgs. 3-4. 16 As noted in respondent’s opposition, there does not appear to be any new legal 17 argument that petitioner articulated in his second action that would have required extra time to 18 research. See ECF No. 18, pg. 3. It is unclear from petitioner’s response what the additional 19 library time was needed for, and it remains unexplained what causal connection exists between 20 these events and his failure to timely file his habeas corpus petition. As demonstrated in prior 9th 21 circuit cases, ordinary prison limitations on access to the law library, without more, are neither 22 “extraordinary” nor make it “impossible” to file a petition in a timely manner. Ramirez, 571 23 F.3d at 998. Therefore, petitioner is not entitled to equitable tolling. 24 C. The Limitations Period Ends 25 As indicated above, by the time the state court denied petitioner’s untimely 26 second post-conviction action, a total of 367 days had elapsed (273 through filing of the first 27 state court action plus 94 days through denial of the second state court action). Thus, it is 28 irrelevant whether petitioner was entitled to statutory tolling for the interval between denial of 1 | the second state court action and the filing of the third, as well as the time the third state court 2 | action was pending, because the one-year limitations period had already expired by the time the 3 | second state court action was denied. 4 5 I. CONCLUSION 6 Based on the foregoing, the undersigned recommends that respondent’s motion to 7 | dismiss (ECF No. 10) be granted. 8 These findings and recommendations are submitted to the United States District 9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 363(b)(1). Within 14 days 10 | after being served with these findings and recommendations, any party may file written 11 | objections with the court. Responses to objections shall be filed within 14 days after service of 12 | objections. Failure to file objections within the specified time may waive the right to appeal. See 13 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 |} Dated: November 5, 2019 Ssvcqo_ 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28