(HC) Smith v. Lizzaraga ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY DON SMITH, No. 2:18-CV-0064-KJM-DMC-P 12 Petitioner, 13 v. ORDER 14 JOE LIZZARAGA, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. Pending before the Court is respondent’s motion to 19 dismiss the petition (ECF No. 10) as time bared because it was filed past the one-year statute of 20 limitations period. The matter was referred to a United States Magistrate Judge as provided by 21 Eastern District of California local rules. 22 On May 8, 2019, the magistrate judge filed findings and recommendations, which 23 were served on the parties and which contained notice that the parties may file objections within 24 the time specified therein. Respondent filed timely objections to the findings and 25 recommendations. 26 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 27 304(f), this court has conducted a de novo review of this case. Having reviewed the file, the court 28 ///// 1 finds the findings and recommendations to be generally supported by the record and by proper 2 analysis, with the following clarification. 3 Respondent argues the magistrate judge improperly found the petition timely. 4 Respondent asserts the magistrate judge properly determined the time between the habeas petition 5 filed in the superior court and the petition filed in the court of appeal was unreasonable and thus 6 untimely for tolling purposes. However, respondent takes issue with the magistrate judge’s 7 determination that petitioner should receive tolling for the period of time the petition was pending 8 with the California Supreme Court. Specifically, respondent argues if a petition is found by a 9 district court to be untimely for tolling purposes in a California superior court or California court 10 of appeal, the petition cannot be timely in any subsequent California court. For that reason, 11 respondent asserts that because the petition was found untimely for tolling purposes in the 12 California Court of Appeal the petition cannot be timely for tolling purposes in the California 13 Supreme Court. 14 Respondent cites Curiel v. Miller, for the proposition that “a petition is either 15 timely or it is not.” In Curiel, the state superior court denied the petition as untimely, the state 16 court of appeal silently denied the petition, and the state supreme court denied the petition on 17 alternative grounds, not timeliness. Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016) (en banc). The 18 court held the California Supreme Court’s alternative ruling indicated the petition was timely and 19 thus overruled the lower court’s finding of untimeliness. Id. The Curiel court’s holding relates to 20 the effect of a higher court’s timeliness finding on a lower court’s finding of untimeliness, and so 21 is inapposite to this case. Here, the superior court did not deny the petition as untimely, and the 22 California Court of Appeal’s and California Supreme Court’s summary denials do not provide a 23 clear indication whether the petition was timely or not. 24 The question here is whether, for tolling purposes, absent clear indication of 25 timeliness from the state courts, a district court may look at each gap between a petitioner’s state 26 habeas petitions to determine whether tolling is appropriate. In other words, may a district court 27 determine tolling on a level by level basis. The Ninth Circuit’s opinion in Velasquez v. Kirkland 28 is instructive. In determining whether Velasquez was entitled to tolling, the Ninth Circuit 1 analyzed “each of the gaps between Velasquez’s state habeas petitions.” Velasquez v. Kirkland, 2 639 F.3d 964, 968 (9th Cir. 2011). In its review of both “gaps,” the court determined that both 3 the gap between Velasquez’s superior court and court of appeal petitions, as well as the gap 4 between Velasquez’s court of appeal and Supreme Court petitions, were “far longer than the 5 Supreme Court’s thirty-to-sixty-day benchmark . . . .” Id. The court goes on to note “[w]ithout 6 an explanation for these lengthy delays” the court could not conclude the petitions were timely 7 and thus could not afford Velasquez tolling. Id. 8 The Ninth Circuit’s analysis in Velasquez demonstrates that a federal court may 9 look at each level to determine whether tolling is appropriate. If the Ninth Circuit intended to 10 adopt the position the government argues here, where a determination of untimeliness at one level 11 prevents a federal court from determining timeliness at a subsequent level, the Ninth Circuit’s 12 analysis would have ended with the determination Velasquez’s second petition was untimely. 13 The Ninth Circuit, however, looked at “each of the gaps” between Velasquez’s petitions to 14 determine if tolling was appropriate, first determining the gap between the first and second 15 petitions was unreasonable and then determining the gap between the second and third petitions 16 was unreasonable. 17 Indeed, the Circuit’s analysis is consistent with Supreme Court precedent. In 18 Evans v. Chavis, the Supreme Court indicated that federal courts must interpret California’s 19 reasonableness standard in a way that does “not lead to filing delays substantially longer than 20 those in States with determined timeliness rules.” Evans v. Chavis, 546 U.S. 189, 190 (2006) 21 (citing Carey v. Saffold, 536 U.S. 214, 222-223 (2002)). By looking at each level to determine 22 tolling, federal courts are best able to guard against substantial filing delays, by tolling only those 23 periods that comport with the “thirty-to-sixty-day” benchmark. This court, along with others, has 24 recognized this approach and engaged in the same level by level analysis. See Peterson v. 25 Hubbard, No. 2:15-CV-0689-KJM-KJN P, 2017 WL 698280, at *4 (E.D. Cal. Feb. 21, 2017) 26 (finding untimely petitioner’s third state habeas petition then finding subsequent petition timely), 27 cert. of appealability denied, No. 17-16326, 2017 WL 9732425 (9th Cir. Dec. 15, 2017); see also 28 Washington v. Figueroa, No. 16-01899-MCE-AC-P, 2017 WL 2345554 (E.D. Cal. May 30, 1 2017); Gray v. Muniz, No. 2:16-CV-1577-JAM-KJN P, 2017 WL 5899401, at *6 (E.D. Cal. Nov. 2 30, 2017), report and recommendation adopted, No. 2:16-CV-1577-JAM-KJN P, 2018 WL 3 1382361 (E.D. Cal. Mar. 19, 2018) (considering effect of Pace,1 Bonner2 and Curiel and 4 ultimately rejecting similar argument). The court notes respondent has cited no binding authority 5 in direct support of his position. The court need not address the issuance of a certificate of 6 appealability (“COA”) because the court’s order does not constitute a final decision from which a 7 COA may issue. 28 U.S.C. § 2253(c)(1)(a); Forde v. U.S. Parole Comm’n, 114 F.3d 878, 879 8 (9th Cir. 1997). 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The findings and recommendations filed May 8, 2019, are adopted in full; 11 2. Respondent’s motion to dismiss (ECF No. 10) is DENIED; 12 3. Respondent shall file an answer to petitioner’s petition for a writ of habeas 13 corpus within 60 days of the date of this order; and 14 4. This matter is referred back to the assigned magistrate judge for all further 15 pretrial proceedings. 16 DATED: October 1, 2019. 17 18 19 20 21 22 23 24 25 26 27 1 Pace v. DiGuglielmo, 544 U.S. 408, 414, 417 (2005). 28 2 Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), amended, 439 F.3d 993 (9th Cir. 2006).