(HC)Langley v. On Habeas Corpus ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY LANGLEY, Case No. 1:19-cv-00547-DAD-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS 14 RAYTHEL FISHER,1 ORDER DIRECTING CLERK OF COURT 15 Respondent. TO SUBSTITUTE RESPONDENT 16 (ECF No. 11) 17 18 Petitioner Randy Langley is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2016 convictions in the 20 Tulare County Superior Court. As the instant petition was filed outside 28 U.S.C. § 2244(d)(1)’s 21 one-year limitation period, the undersigned recommends granting Respondent’s motion to 22 dismiss and dismissing the petition. 23 I. 24 BACKGROUND 25 On June 1, 2016, Petitioner was convicted by a jury in the Tulare County Superior Court 26 of battery against a spouse and disobeying a prior domestic relations court order. Petitioner was 27 1 Raythel Fisher is the Warden of Valley State Prison, where Petitioner is currently housed. (ECF No. 16 at 1 n.1). Accordingly, the Court substitutes Raythel Fisher as Respondent in this matter. See Ortiz-Sandoval v. Gomez, 81 1 sentenced to an imprisonment term of six years. (LDs2 1, 2). On October 17, 2017, the California 2 Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). Petitioner did not seek 3 review in the California Supreme Court. (ECF No. 11 at 2).3 Petitioner filed four state habeas 4 petitions, which were all denied. (LDs 3–10). 5 On April 24, 2019,4 Petitioner constructively filed the instant federal petition for writ of 6 habeas corpus. (ECF No. 1). On June 28, 2019, Respondent filed a motion to dismiss, arguing 7 that the petition was filed outside the one-year limitation period. (ECF No. 11). Petitioner filed 8 an opposition, and Respondent filed a reply. (ECF Nos. 13, 14). 9 II. 10 DISCUSSION 11 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 12 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas 13 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. 14 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the 15 enactment of AEDPA and is therefore governed by its provisions. AEDPA imposes a one-year 16 period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 17 U.S.C. § 2244(d)(1). 18 Section 2244(d) provides: 19 (1) 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 20 judgment of a State court. The limitation period shall run from the latest of – 21 (A) the date on which the judgment became final by the 22 conclusion of direct review or the expiration of the time for seeking such review; 23 (B) the date on which the impediment to filing an application 24 created by State action in violation of the Constitution or laws 25 2 “LD” refers to the documents electronically lodged by Respondent on July 2, 2019. (ECF No. 12). 3 Page numbers refer to the ECF page numbers stamped at the top of the page. 26 4 Pursuant to the mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) 27 (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 1 of the United States is removed, if the applicant was prevented from filing by such State action; 2 (C) the date on which the constitutional right asserted was 3 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 4 retroactively applicable to cases on collateral review; or 5 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 6 exercise of due diligence. 7 28 U.S.C. § 2244(d)(1). 8 A. Commencement of Limitation Period 9 In most cases, the limitation period begins running on the date that the petitioner’s direct 10 review became final. As Petitioner did not appeal to the California Supreme Court, his judgment 11 became final when his time for seeking review with the state’s highest court expired. Gonzalez v. 12 Thaler, 565 U.S. 143, 150 (2012). The time to seek review with the California Supreme Court 13 expired on November 27, 2017,5 forty days after the Court of Appeal’s decision was filed. See 14 Cal. R. Ct. 8.366(b)(1) (“[A] Court of Appeal decision . . . is final in that court 30 days after 15 filing.”); Cal. R. Ct. 8.500(e)(1) (“A petition for review must be . . . filed within 10 days after the 16 Court of Appeal decision is final in that court.”). The one-year limitation period commenced 17 running the following day, November 28, 2017, and absent tolling, was set to expire on 18 November 27, 2018. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. 19 R. Civ. P. 6(a)). 20 B. Statutory Tolling 21 The “time during which a properly filed application for State post-conviction or other 22 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 23 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). A habeas petition that is 24 untimely under state law is not “properly filed.” Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). 25 Therefore, “none of the time before or during the state court’s consideration of an untimely 26 5 Forty days after the Court of Appeal’s decision, November 26, 2017, fell on a Sunday. Accordingly, the time to 27 seek review continued to run until the next business day. See Cal. R. Ct. 1.10(a) (“The time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the 1 petition is tolled for purposes of AEDPA’s limitations period.” Curiel v. Miller, 830 F.3d 864, 2 868 (9th Cir. 2016) (en banc) (citing Evans v. Chavis, 546 U.S. 189, 197 (2006)). “[I]f a 3 California court dismisses a habeas petition without comment, or even if it reviews a petition on 4 the merits without discussing timeliness, a federal court ‘must itself examine the delay in each 5 case and determine what the state courts would have held in respect to timeliness.’” Robinson v. 6 Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (quoting Chavis, 546 U.S. at 197–98). 7 California courts apply a general “reasonableness” standard to determine whether a state 8 habeas petition is timely. Carey v. Saffold, 536 U.S. 214, 222 (2002). Because “California courts 9 had not provided authoritative guidance on this issue,” the Supreme Court in Chavis “made its 10 own conjecture . . . ‘that California’s “reasonable time” standard would not lead to filing delays 11 substantially longer than’ between 30 and 60 days.” Robinson, 795 F.3d at 929 (quoting Chavis, 12 546 U.S. at 199). However, if a petitioner demonstrates good cause, California courts allow a 13 longer delay. Robinson, 795 F.3d at 929 (citing In re Robbins, 18 Cal. 4th 770, 780 (1998)). 14 1. First State Petition 15 Petitioner’s first state habeas petition was filed (September 8, 2016) and denied 16 (September 23, 2016) before the one-year limitation period commenced. (LDs 3, 4). Therefore, 17 Petitioner is not entitled to statutory tolling for the period during which this petition was pending. 18 See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (finding that a state habeas petition filed 19 and denied before the federal limitations period began to run “ha[s] no effect on the timeliness of 20 the ultimate federal filing”). 21 2. Second and Third State Petitions 22 On February 11, 2018, Petitioner constructively filed a state habeas petition in the Tulare 23 County Superior Court, which denied the petition on April 8, 2018. (LDs 5, 6). On May 23, 24 2018, Petitioner constructively filed a state habeas petition in the California Court of Appeal, 25 Fifth Appellate District, which denied the petition on June 7, 2018. (LDs 7, 8). There is nothing 26 in the record that suggests these petitions were not properly filed, and Respondent makes no such 27 argument. (ECF No. 11 at 6). Thus, Petitioner is entitled to statutory tolling for the period his 1 3. Fourth State Petition 2 On October 4, 2018, Petitioner constructively filed a state habeas petition in the 3 California Supreme Court, which denied the petition on March 20, 2019. (LDs 9, 10). 4 Respondent argues that because this petition was untimely and thus, “not properly filed,” there is 5 no statutory tolling of the time before or during the California Supreme Court’s consideration of 6 Petitioner’s fourth state habeas petition. (ECF No. 11 at 7). 7 Petitioner filed his fourth state habeas petition in the California Supreme Court 119 days 8 after the California Court of Appeal denied habeas relief. The Ninth Circuit has held that delays 9 of 115, 101, and 81 days make a California state habeas petition untimely unless the petitioner 10 can show good cause. Robinson, 795 F.3d at 930 (citing Velasquez v. Kirkland, 639 F.3d 964, 11 968 (9th Cir. 2011); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010)). Here, Petitioner 12 has failed to provide an explanation for the 119-day delay in filing his state habeas petition in the 13 California Supreme Court. Accordingly, the Court finds that Petitioner is not entitled to statutory 14 tolling for the period Petitioner’s fourth state habeas petition was pending and the interval 15 between the California Court of Appeal’s adverse decision and when the petition was filed in the 16 California Supreme Court. 17 4. Conclusion 18 The Court finds that the instant federal petition was filed outside the one-year limitation 19 period when statutory tolling is applied. Seventy-five days elapsed between the date Petitioner’s 20 state conviction became final (November 27, 2017) and the date Petitioner filed his second 21 habeas petition in the Tulare County Superior Court (February 11, 2018). AEDPA’s one-year 22 clock stopped while Petitioner’s second and third state habeas petitions were pending in the 23 Tulare County Superior Court and the California Court of Appeal (February 11, 2018– June 7, 24 2018). As discussed above, Petitioner’s fourth state habeas petition was untimely and thus, did 25 not toll the limitation period. The one-year limitation period therefore expired on March 25, 26 2019.6 27 6 The limitation period ended on March 24, 2019, which fell on a Sunday. Accordingly, the time to seek timely 1 Accordingly, the instant federal habeas petition is untimely unless Petitioner establishes 2 that equitable tolling is warranted. 3 C. Equitable Tolling 4 The limitations period is subject to equitable tolling if the petitioner demonstrates “‘(1) 5 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 6 stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) 7 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of alleging 8 facts that would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. 9 Petitioner argues that he is entitled to equitable tolling because the California Supreme 10 Court took five and a half months to decide his state habeas petition. (ECF No. 13 at 2). 11 However, the Ninth Circuit has “stated that twenty-one months is ‘not an unusually long time to 12 wait for a court’s decision’” with respect to a California state habeas petition. Fue v. Biter, 842 13 F.3d 650, 654 (9th Cir. 2016) (en banc) (quoting Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 14 2001)). Further, the Court notes that if Petitioner had timely filed his state habeas petition in the 15 California Supreme Court, he would have been entitled to toll the five and a half months the 16 petition was pending. However, Petitioner has not provided any explanation or justification for 17 the 119-day delay in seeking review in the California Supreme Court after his petition was 18 denied in the appellate court. 19 As Petitioner has not demonstrated that he is entitled to equitable tolling, the instant 20 federal petition was not timely filed, and dismissal is warranted on this ground. 21 III. 22 RECOMMENDATION & ORDER 23 Accordingly, the undersigned HEREBY RECOMMENDS that: 24 1. Respondent’s motion to dismiss (ECF No. 11) be GRANTED; and 25 2. The petition for writ of habeas corpus be DISMISSED as untimely; 26 Further, the Clerk of Court is DIRECTED to substitute Raythel Fisher as Respondent in 27 this matter. 1 This Findings and Recommendation is submitted to the assigned United States District 2 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 | Rules of Practice for the United States District Court, Eastern District of California. Within 4 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 5 | written objections with the court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 7 | objections shall be served and filed within fourteen (14) days after service of the objections. The 8 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 9 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 10 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 11 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 12 | Cir. 1991)). 13 4 IT IS SO ORDERED. 15] Dated: _ September 24, 2019 [sf ey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28