(HC) Stitt v. Pickett ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRIC MEREDITH RICK GENE STITT, ) Case No.: 1:20-cv-00153-NONE-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) GRANT RESPONDENT’S MOTION TO DISMISS 13 v. ) ) (Doc. 15) 14 M. SPEARMAN, Warden, ) 15 Respondent. ) TWENTY-ONE DAY OBJECTION DEADLINE ) 16 ) 17 On December 17, 2019, Petitioner filed the instant federal petition for writ of habeas corpus. 18 (Doc. 1.) The United States District Court for the Northern District of California transferred the case to 19 this Court on January 29, 2020. (Doc. 5.) The Respondent has moved the Court to dismiss the action 20 as untimely. (Doc. 15.) The Court finds the petition to be untimely and recommends that it be 21 DISMISSED with prejudice. 22 DISCUSSION 23 I. Procedural Grounds for Motion to Dismiss 24 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 25 if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 26 relief in the district court. . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 28 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s 1 procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to 2 evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 3 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state 4 procedural default). Thus, a respondent can file a motion to dismiss after the court orders a response, 5 and the court should use Rule 4 standards to review the motion. 6 Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year 7 limitation period. Because Respondent's motion to dismiss is similar in procedural standing to a 8 motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent 9 has not yet filed a formal answer, the Court will review Respondent’s motion to dismiss pursuant to its 10 authority under Rule 4. 11 II. Limitation Period for Filing Petition for Writ of Habeas Corpus 12 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 13 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus 14 filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 15 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was 16 filed on December 17, 2019, and thus, it is subject to the provisions of the AEDPA. 17 The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 18 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In most cases, the limitation period begins 19 running on the date that the petitioner’s direct review became final. In this case, Petitioner did not 20 appeal his March 17, 2017 judgment after his resentencing. Therefore, Petitioner’s conviction became 21 final sixty days after he was resentenced when the time for filing a direct appeal expired, or May 16, 22 2017. The statute of limitations commenced on the following day on May 17, 2017. Absent 23 applicable tolling, the last day to file a federal habeas petition was May 16, 2018, though Petitioner did 24 not file it until December 17, 2019. 25 III. Statutory Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 26 Under the AEDPA, the statute of limitations is tolled during the time that a properly filed 27 application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 28 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules 1 governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 2 U.S. 4, 8 (2000). An application is pending during the time that “a California petitioner completes a 3 full round of [state] collateral review,” so long as there is no unreasonable delay in the intervals 4 between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez, 5 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall, 548 6 F. 3d 729 (9th Cir. 2008) (per curiam); see Evans v. Chavis, 546 U.S. 189, 193-194 (2006); Carey v. 7 Saffold, 536 U.S. 214, 220, 222-226 (2002); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 8 Petitioner did not file any state collateral actions after he was resentenced. Therefore, 9 Petitioner is not entitled to statutory tolling, and the instant petition remains untimely. 10 IV. Equitable Tolling 11 The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to equitable 12 tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 651-652 (2010); Calderon v. 13 United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). Equitable tolling may be granted when 14 “extraordinary circumstances beyond a prisoner’s control make it impossible to file the petition on 15 time.” Shannon v. Newland, 410 F. 3d 1083, 1089-1090 (9th Cir. 2005) (internal quotation marks and 16 citations omitted). “When external forces, rather than a petitioner’s lack of diligence, account for the 17 failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate.” Miles 18 v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). “Generally, a litigant seeking equitable tolling bears 19 the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that 20 some extraordinary circumstance stood in his way.” Holland, 560 U.S. at 655; Pace v. DiGuglielmo, 21 544 U.S. 408, 418 (2005). “[T]he threshold necessary to trigger equitable tolling under AEDPA is 22 very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 23 2002) (citation omitted). Consequently, “equitable tolling is unavailable in most cases.” Miles, 187 F. 24 3d at 1107. 25 Petitioner claims he has had “considerable mental health issues over the years . . . that made it 26 impossible for him to pursue habeas relief in a timely manner.” (Doc. 12 at 13-14.) However, as 27 Respondent argues, Petitioner fails to prove his allegation by including details of the exact nature of 28 his alleged mental illness, the precise time period he suffered from any impairments, and how they 1 prevented him from sooner challenging his conviction. (Doc. 15 at 5.) Instead, as Respondent argues, 2 he presents his claim in very generalized terms. (Doc. 15 at 5.) Petitioner attaches various documents 3 to support his allegation, but as Respondent contends, none of these documents are dated within the 4 relevant time frame or even since his resentencing in March 2017. (Doc. 15 at 6; see Doc. 12 at 17- 5 21.) Accordingly, Petitioner’s records do not demonstrate that he had a mental impairment throughout 6 the relevant time period. His assertion that a mental health condition caused the delay are not enough. 7 Petitioner has failed to set forth the details necessary for his claim for equitable tolling based on a 8 mental impairment. 9 Petitioner fails to demonstrate any extraordinary circumstance stood in his way of timely filing 10 his federal petition, and he fails to show that he acted diligently. He should not be granted equitable 11 tolling. The instant petition is untimely and should be dismissed. 12 RECOMMENDATION 13 Accordingly, the Court RECOMMENDS that the motion to dismiss be GRANTED and the 14 habeas corpus petition be DISMISSED WITH PREJUDICE for Petitioner’s failure to comply with 28 15 U.S.C. § 2244(d)’s one-year limitation period. 16 This Findings and Recommendation is submitted to the United States District Court Judge 17 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 18 Local Rules of Practice for the United States District Court, Eastern District of California. Within 19 twenty-one days after being served with a copy, any party may file written objections with the Court 20 and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed within ten 22 court days after service of the objections. The Court will then review the Magistrate Judge’s ruling 23 pursuant to 28 U.S.C. § 636 (b)(1)(C). 24 /// 25 /// 26 /// 27 /// 28 1 The parties are advised that failure to file objections within the specified time may waive the 2 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: May 19, 2020 /s/ Jennifer L. Thurston 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28