(HC) Fisher v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACOB FISHER, Case No. 2:18-cv-02725-WBS-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO 13 v. DISMISS BE GRANTED 14 KEN CLARK, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 39 16 17 Petitioner Jacob Fisher is a state prisoner seeking habeas corpus relief under 28 U.S.C. 18 § 2241. On September 23, 2019, petitioner was granted a stay under Kelly v. Small, 315 F.3d 19 1063 (9th Cir. 2003), and permitted to return to state court to exhaust his ineffective assistance of 20 counsel claims. ECF No. 21 at 2. On April 9, 2021, Petitioner filed a third amended petition 21 containing various ineffective assistance of counsel claims, ECF No. 35 at 4-5, and a claim that 22 the trial court erred in allowing the introduction of text messages that petitioner had sent the 23 victim, id. at 3. Respondent has moved to dismiss the ineffective assistance claims as untimely. 24 ECF No. 39. That motion should be granted for the reasons stated below. 25 No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. 26 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 27 provided for in the rules but must be inferred from their structure and the Advisory Committee 28 1 Notes.”). Following an approach taken by other courts in this district, I conclude that Rule 4 of 2 the Rules Governing Section 2254 Cases is the proper analytical framework for a motion to 3 dismiss a section 2241 petition. See, e.g., Ram v. Sacramento Cty., No. 2:15-CV-2074-WBS-DB 4 (P), 2017 WL 2403701, at *4 (E.D. Cal. June 2, 2017), subsequently aff’d in Ram v. Cty. of 5 Sacramento, 738 F. App’x 571 (9th Cir. 2018). Under Rule 4, I evaluate whether it “plainly 6 appears” that the petitioner is not entitled to relief and, if so, recommend dismissal. 7 Respondent argues, and petitioner does not dispute, that the Anti-Terrorism and Effective 8 Death Penalty Act’s one-year statute of limitations began running on October 18, 2017. ECF No. 9 39 at 2. His last day to file a federal habeas petition was, absent tolling, October 18, 2018.1 10 Petitioner filed his first federal habeas petition on October 9, 2018. ECF No. 1. He later 11 acknowledged, however, that he had not exhausted his ineffective assistance claims, and sought a 12 stay so that he might return and exhaust his claims in state court. ECF No. 17 at 4. The district 13 judge granted petitioner a Kelly stay on September 23, 2019 and directed him to submit a petition 14 that deleted his ineffective assistance claims. ECF Nos. 21 & 22. Petitioner did so on November 15 12, 2019. ECF No. 23. Then, on April 9, 2021, petitioner filed a third amended petition that 16 reincluded his newly exhausted ineffective assistance of counsel claims. 17 Respondent argues that the ineffective assistance claims are untimely because, after being 18 deleted from the original petition, they must be considered “new” claims in the amended petition. 19 I agree. A Kelly stay does not preserve the timeliness of the unexhausted claims that are deleted 20 from the petition. See Mitchell v. Valenzuela, 791 F.3d 1166, 1171 n.4 (9th Cir. 2015) (“[F]rom 21 the perspective of the petitioner, the downside of the Kelly procedure is that there is no assurance 22 that the claims added to the petition after exhaustion will be considered timely filed.”) (citing 23 King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009)); see also Dean v. Robertson, No. 2:18-cv- 24 01287-TLN-GGH (P), 2021 U.S. Dist. LEXIS 75934, *8 (E.D. Cal. Apr. 20, 2021) (“[T]he nature 25 of a Kelly stay does not permit the timeliness of the filing of [the claim] in the initial petition to be 26 calculated from the date of the petition filing. That is, in order to qualify for the Kelly stay, [the 27 1 Petitioner did not file a state habeas petition until November 2020, ECF No. 40-1, and he 28 is not entitled to tolling on any other basis. 1 | claim] had to be deleted from the case when the ‘exhausted claims only’ petition was filed . . . it 2 | was as if [the claim] had never been filed in the initial petition.”). Petitioner argues that his newly 3 | added ineffective assistance claims are timely because they relate back to claims in his original 4 | petition. ECF No. 41 at 2-3. But the ineffective assistance claims in his original petition cannot 5 | be related back to because they were unexhausted at the time they were filed. See King, 564 F.3d 6 | at 1142 (holding that “new claims [must] relate back to claims properly contained in the original 7 | petition—that is, those claims that were exhausted at the time of filing”). His newly added 8 | ineffective assistance claims, dated March 23, 2021, are untimely and should be dismissed on that 9 | basis.? 10 I RECOMMEND that respondent’s motion to dismiss, ECF No. 39, be granted and 11 | petitioner’s ineffective assistance of counsel claims be dismissed. This case should proceed only 12 | on petitioner’s claim that the trial court erred in admitting his text messages. If these 13 | recommendations are adopted, I will issue a scheduling order directing respondent to answer the 14 | remaining claim. 15 These findings and recommendations are submitted to the U.S. district judge presiding 16 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 17 | service of the findings and recommendations, the parties may file written objections to the 18 | findings and recommendations with the court and serve a copy on all parties. That document 19 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 20 || presiding district judge will then review the findings and recommendations under 28 U.S.C. 21 | § 636(b)1)(C). 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ October 26, 2021 Q_-——_ 25 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 27 {| > The date petitioner signed the amended petition and, presumably, placed it in the prison 28 | mail system. ECF No. 35 at 29.