(HC) Cole v. Sullivan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER LEE COLE, No. 2:20-cv-01452 GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 W.J. SULLIVAN, Warden, 15 Respondent. 16 17 Introduction 18 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge 20 pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302(c). 21 Pending before the court is respondent’s motion to dismiss on the ground that petitioner is 22 barred by the one-year state of limitations pursuant to 28 U.S.C. § 2244(d). ECF No. 13. 23 Petitioner has filed an opposition. ECF No. 18. After carefully reviewing the filings and 24 applicable legal standards, the court now recommends that the motion to dismiss be granted. 25 Procedural Background 26 On June 13, 2007, petitioner was convicted by a jury trial in Solano County Superior 27 Court for assault by a life prisoner (Cal. Pen. Code § 4500), assault with a deadly weapon (Cal. 28 Pen. Code § 245(a)(1)), and possession of weapon in a penal institution (Cal. Pen. Code § 4502). 1 ECF No. 1 at 37-42. A previous serious felony (Cal. Pen. Code § 667(a)(1)) and a “strike” (Cal. 2 Pen. Code § 667(e)) were also found to be true. Id.; see also ECF No. 9 at 69-71. Petitioner was 3 sentenced on December 19, 2007 to a total indeterminate sentence of 18 years to life and a total 4 determinate sentence of 11 years. ECF No. 9 at 70. The trial court further ordered petitioner to 5 pay a $1,000 restitution fine (Cal. Pen. Code § 1202.4(b)). Id. The trial court further imposed an 6 additional $1,000 restitution fine (Cal. Pen. Code § 1202.45) that was suspended unless parole 7 was revoked. Id. On November 4, 2008, the California Court of Appeal, First Appellate District 8 (“Court of Appeal”) affirmed the judgment in part and reversed the judgment as to count 2 for 9 assault with a deadly weapon only. ECF No. 13 at 13-18. Petitioner appealed to the California 10 Supreme Court and his petition for review was denied on January 14, 2009. Id. at 20. 11 Several years later, petitioner filed a series of collateral challenges to his judgment of 12 conviction. Petitioner filed an “Ex Parte Motion for the Disposition of Fines” with the Solano 13 County Superior Court and was denied on June 30, 2015. ECF No. 9 at 32. Petitioner filed a 14 “Motion for Review and for Modification of Sentence Pursuant to Section 1260 P.C.” in the 15 Solano County Superior Court and was denied on March 25, 2016. ECF No. 9 at 46. Petitioner 16 also filed an “Ex Parte Notice of Motion to Vacate or Stay Restitution Order/Fines” in the Solano 17 County Superior Court and was denied on August 19, 2019. ECF No. 9 at 35. 18 Petitioner filed his first post-conviction habeas petition with the Court of Appeal on 19 September 5, 2019 and was denied on September 12, 2019. ECF No. 9 at 68.1 On September 26, 20 2019, petitioner filed his habeas petition with the California Supreme Court and was denied on 21 January 2, 2020. Id. at 73. 22 Petitioner subsequently filed a writ of mandate with the California Supreme Court and 23 was denied on February 19, 2020. Id. 126-131; see also ECF No. 13 at 6. 24 //// 25 //// 26 1 The court affords petitioner application of the mailbox rule as to all his habeas filings in state court and federal court. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from 27 the date prisoner delivers it to prison authorities); Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to pro se prisoner who delivers habeas petition to prison officials for the court 28 within limitations period). In any event, the mailbox rule is inconsequential in this case. 1 On July 15, 2020, petitioner filed the instant federal habeas petition. ECF No. 1. On July 2 23, 2020, petitioner filed a first amended habeas petition. ECF No. 9. This action proceeds on 3 petitioner’s first amended habeas petition. See Fed. R. Civ. P. 15 (a).2 4 Legal Standards 5 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 6 1996 ( “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year statute of 7 limitations for federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1) provides, in pertinent part: 8 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 judgment of 9 a State court. The limitation period shall run from the latest of– 10 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 11 seeking such review; 12 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws 13 of the United States is removed, if the applicant was prevented from filing by such State action; 14 (C) the date on which the constitutional right asserted was 15 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 16 retroactively applicable to cases on collateral review; 17 (D) or the date on which the factual predicate of the claim or claims presented could have been discovered through the 18 exercise of due diligence. 19 28 U.S.C. § 2244(d). 20 Notwithstanding the collateral state habeas petitions, petitioner’s conviction became final 21 ninety days after the California Supreme Court’s decision on April 14, 2009. Bowen v. Roe, 188 22 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, petitioner’s limitations period began to run the 23 following day, on April 15, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) 24 (citing Fed. R. Civ. P. 6(a)). Absent applicable tolling, petitioner’s limitations period expired one 25 2 Although Respondent’s motion to dismiss is centered on petitioner’s original habeas 26 petition, there is no substantial changes to petitioner’s arguments in his first amended petition that impact or alter respondent’s motion to dismiss based on timeliness grounds. Accordingly, the 27 undersigned will not require respondent to resubmit a renewed motion to dismiss. The undersigned will proceed as though respondent’s motion is referring to the first amended petition. 28 Petitioner has opposed the Motion to Dismiss. 1 year later, on April 15, 2010. The instant federal habeas action filed 10 years later on July 15, 2 2020 is barred as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A). 3 Here, petitioner does not propose he is entitled to statutory or equitable tolling. On the 4 contrary, petitioner argues state law grants him a later trigger date for the statute of limitations 5 period. Petitioner alleges “sentencing errors which go to the jurisdiction of the court can be raised 6 at anytime, even though no objections were interposed in the trial court.” ECF No. 18 at 3 7 (quotation marks omitted) (citing People v. Serrato, 9 Cal. 3d 753 (1973)). However, federal law, 8 not state law, governs the AEDPA statute of limitations period. Accordingly, the pertinent 9 commencement period for the statute of limitations began on “the date on which the judgment 10 became final by the conclusion of direct review or the expiration of the time for seeking such 11 review.” 28 U.S.C. § 2244(d)(1)(A). Accordingly, this pending amended federal petition should 12 be dismissed as untimely. 13 Conclusion 14 For the reasons stated above, the undersigned recommends dismissing petitioner’s habeas 15 petition as untimely. 16 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 17 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 18 certificate of appealability may issue only “if the applicant has made a substantial showing of the 19 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings 20 and recommendations, a substantial showing of the denial of a constitutional right has not been 21 made in this case. 22 IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a district judge to 23 this action. 24 Furthermore, IT IS HEREBY RECOMMENDED that: 25 1. Respondent’s motion to dismiss (ECF No. 13) be granted; 26 2. The first amended habeas petition (ECF No. 9) be dismissed with prejudice for 27 untimeliness; and 28 //// 1 3. The District Court decline to issue a certificate of appealability. 2 These Findings and Recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 4 after being served with these findings and recommendations, any party may file written 5 objections with the court and serve a copy on all parties. Such a document should be captioned 6 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 7 objections shall be filed and served within fourteen days after service of the objections. The 8 parties are advised that failure to file objections within the specified time may waive the right to 9 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 Dated: March 3, 2021 /s/ Gregory G. Hollows 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28