(HC) Ansley v. Gastelo ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 EDWARD ANSLEY, No. 2:14-cv-02376-TLN-CKD P 10 Petitioner, 11 v. ORDER AND 12 JOSIE GASTELO, FINDINGS AND RECOMMENDATIONS 13 Respondent.1 14 15 Petitioner is a state prisoner proceeding pro se in this habeas corpus action filed pursuant 16 to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to dismiss petitioner’s 17 federal habeas corpus application. ECF No. 19. On January 25, 2021, petitioner was ordered to 18 file an opposition or a statement of non-opposition within 21 days. ECF No. 23. Petitioner did 19 not respond to the court’s order and the time for doing so has expired. For the reasons discussed 20 below, the court recommends that the motion to dismiss be granted and petitioner’s application 21 for federal habeas corpus relief be dismissed with prejudice. 22 I. Factual and Procedural History 23 Petitioner was convicted following a jury trial in the Lassen County Superior Court of 24 possessing a sharp instrument while a prisoner. ECF No. 21-1 (Abstract of Judgment). He was 25 sentenced on January 30, 2012 to 25 years to life pursuant to California’s Three Strikes Law. See 26 27 1 The court substitutes Josie Gastelo, Warden of the California Men’s Colony where petitioner is currently confined, as respondent in this matter pursuant to Rule 2(b) of the Rules Governing 28 Section 2254 Cases. See also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 1 ECF No. 21-1. The California Court of Appeal affirmed petitioner’s conviction on April 24, 2 2013. See ECF No. 21-2 (Direct Appeal Opinion). The California Supreme Court denied a 3 petition for review on July 10, 2013. See ECF No. 21-4. 4 The instant § 2254 petition was filed by counsel on October 9, 2014.2 ECF No. 1. 5 Petitioner raises three claims for relief. In his first claim, petitioner contends that the evidence 6 was insufficient to convict him in violation of due process. ECF No. 1 at 6. Next, petitioner 7 asserts that the trial court violated his right to due process when it instructed the jury that it could 8 find petitioner guilty based on constructive possession. ECF No. 1 at 8. Lastly, petitioner alleges 9 that his trial attorney was ineffective for failing to investigate and present favorable evidence. 10 ECF No. 1 at 10. 11 II. Motion to Dismiss 12 Respondent filed a motion to dismiss on November 9, 2020 asserting that the petition was 13 not signed by counsel or petitioner, it was filed one day after the statute of limitations expired, 14 and contains two unexhausted claims for relief. ECF No. 19. 15 By order of January 25, 2021, the court sua sponte granted petitioner an additional 21 days 16 to file an opposition to the motion to dismiss or a statement of non-opposition. ECF No. 23. 17 Petitioner did not respond to the court order and the time for doing so has expired. 18 III. Legal Standards 19 A. Statute of Limitations 20 Section 2244(d) (1) of Title 28 of the United States Code contains a one-year statute of 21 limitations for filing a habeas petition in federal court. The one-year clock commences from 22 several alternative triggering dates which are described as: 23 24 2 As petitioner did not file the § 2254 application pro se, he is not entitled to the benefit of the prison mailbox rule in determining a constructive filing date. See Houston v. Lack, 487 U.S. 266, 25 271 (1988) (adopting the prison mailbox rule for pro se prisoners because they “cannot personally travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the date on which 26 the court received the notice.”). Moreover, counsel did not sign or date the § 2254 petition in this 27 case. See ECF No. 1 at 16. Instead, counsel states that he “represented Petitioner on appeal in state court and signs this Petition upon belief that Petitioner would file it personally but for 28 concerns for timeliness.” ECF No. 1 at 16. 1 (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; 2 (B) the date on which the impediment to filing ... is removed, if the 3 applicant was prevented from filing by such State action; 4 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court ... and made retroactively 5 applicable to cases on collateral review; or 6 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 7 diligence. 8 28 U.S.C. § 2244(d)(1). 9 B. Statutory Tolling 10 Under the AEDPA, the statute of limitations is tolled during the time that a properly filed 11 application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. 12 § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules 13 governing filings, including the form of the application and time limitations. Artuz v. Bennett, 14 531 U.S. 4, 8 (2000). The statute of limitations is not tolled from the time when a direct appeal in 15 state court becomes final to the time when the first state habeas petition is filed because there is 16 nothing “pending” during that interval. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 17 Moreover, the tolling provision of § 2244(d)(2) can only pause a clock not yet fully run; it cannot 18 “revive” the limitations period once it has expired (i.e., restart the clock to zero). Thus, a state 19 court habeas petition filed after the expiration of AEDPA's statute of limitations does not toll the 20 limitations period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 21 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 22 C. Equitable Tolling 23 A court may equitably toll the statute of limitations if petitioner demonstrates: 1) the 24 existence of an “extraordinary circumstance” that prevented him from timely filing; and, 2) that 25 notwithstanding such an impediment he was diligently pursuing relief. See Holland v. Florida, 26 560 U.S. 631, 649 (2010). The Supreme Court has further clarified that the diligence required to 27 establish entitlement to equitable tolling is not “‘maximum feasible diligence’” but rather only 28 “‘reasonable diligence.’” Holland, 560 U.S. at 653 (citations omitted). However, the Ninth 1 Circuit has cautioned that “the threshold necessary to trigger equitable tolling ... is very high, lest 2 the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) 3 (internal citations and quotations omitted). Additionally, petitioner must demonstrate the causal 4 relationship between the extraordinary circumstance and the untimely filing. Spitsyn v. Moore, 5 345 F.3d 796, 799 (9th Cir. 2003). With respect to equitable tolling, “the statute-of-limitations 6 clock stops running when extraordinary circumstances first arise, but the clock resumes running 7 once the extraordinary circumstances have ended or when the petitioner ceases to exercise 8 reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 9 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)). 10 IV. Analysis 11 The court will address the statute of limitations issue first as it is the only basis raised by 12 respondent that would result in a dismissal with prejudice. In the instant case, petitioner’s 13 conviction became final on October 8, 2013 following the expiration of the 90-day period to file a 14 petition for writ of certiorari with the Supreme Court. The statute of limitations commenced the 15 next day and expired one year later on October 8, 2014. See Patterson v. Stewart, 251 F.3d 1243 16 (9th Cir. 2001) (holding that Rule 6(a) of the Federal Rules of Civil Procedure applies when 17 calculating the one-year grace period after the enactment of the AEDPA). Petitioner’s § 2254 18 application was filed by counsel on October 9, 2014, one day after the statute of limitations 19 expired.3 It is therefore time-barred and should be dismissed with prejudice. Petitioner has not 20 opposed the motion to dismiss or requested equitable tolling of the statute of limitations on any 21 grounds. Accordingly, the undersigned recommends granting respondent’s motion to dismiss 22 based on the statute of limitations. 23 While the court recommends dismissing the § 2254 petition with prejudice based on the 24 statute of limitations, it is also necessary to address the unverified nature of the petition itself. 25 3 Counsel for petitioner acknowledged this before the motion to dismiss was even filed. See ECF No. 10 at 2 (stating that “I am very, very sorry, but I believe I may have filed it one day late 26 because I calculated the date incorrectly.”); see also Lawrence v. Florida, 549 U.S. 327 (2007) 27 (emphasizing that “[a]ttorney miscalculation [of the statute of limitations] is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no 28 constitutional right to counsel.”). 1 See ECF No. 19 at 2-3. Counsel for petitioner electronically filed the § 2254 application without 2 signing it or attaching petitioner’s signature to it. See ECF No. 1 at 16. Respondent points out 3 that without such verification, petitioner may be able to file a second or successive § 2254 4 petition by arguing that counsel was not authorized to file the pending matter on his behalf. See 5 ECF No. 19 at 2-3 (citing Deutscher v. Angelone, 16 F.3d 981, 982-84 (9th Cir. 1994)). 6 However, the court finds a sufficient factual basis on this record to indicate that petitioner did, in 7 fact, authorize counsel to file the pending § 2254 petition on his behalf. See ECF No. 8 at 2 8 (indicating that petitioner expressly directed him to file a § 2254 petition during a prison visit); 9 ECF No. 10 at 2 (motion to withdraw indicating that the § 2254 petition was filed “on behalf of 10 petitioner.”). Ultimately, counsel filed a motion to withdraw which the court granted on August 11 1, 2017. See ECF No. 14. While proceeding in this action pro se, petitioner responded to this 12 court’s order to show cause why the stay of this action should not be lifted. See ECF Nos. 15. 13 Therefore, there is no factual basis suggesting that petitioner did not authorize the filing of the 14 present habeas corpus action. While the 2254 petition is procedurally defective without a 15 signature, the undersigned considers it unnecessary to grant petitioner leave to amend based on 16 the recommendation that it should be dismissed with prejudice as time barred. Therefore, the 17 court recommends that the motion to dismiss the § 2254 petition because it is unverified be 18 denied as moot.4 19 V. Plain Language Summary for Pro Se Party 20 The following information is meant to explain this order in plain English and is not 21 intended as legal advice. 22 After reviewing the motion to dismiss, the undersigned has determined that your federal 23 habeas petition was filed after the statute of limitations had already expired. As a result, the 24 claims raised in the habeas petition will not be addressed on the merits and it is recommended that 25 your habeas petition be dismissed with prejudice. 26 27 4 Likewise, in the interests of judicial economy, the court finds it unnecessary to address the third ground presented in the motion to dismiss based on petitioner’s failure to exhaust his state court 28 remedies for claims two and three. 1 If you disagree with this outcome, you have 14 days to explain why it is incorrect. Label 2 your explanation as “Objections to Magistrate Judge’s Findings and Recommendations.” 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court substitute Josie Gastelo 4 as respondent in this matter. 5 IT IS FURTHER RECOMMENDED that: 6 1. Respondent’s motion to dismiss (ECF No. 19) be granted in part for the reasons 7 indicated herein. 8 2. Petitioner’s application for a writ of habeas corpus be dismissed with prejudice as 9 barred by the statute of limitations. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 15 may address whether a certificate of appealability should issue in the event he files an appeal of 16 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 17 court must issue or deny a certificate of appealability when it enters a final order adverse to the 18 applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 19 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 20 debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 21 reason would find it debatable whether the petition states a valid claim of the denial of a 22 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 23 McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 | within fourteen days after service of the objections. The parties are advised that failure to file 2 | objections within the specified time may waive the right to appeal the District Court’s order. 3 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: March 1, 2021 Pr} i, / CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 12/ans12376.mtd+sig.docx 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28