Alexeev v. Beccera ( 2020 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 VICTOR ALEXEEV, No. C 19-5150 WHA (PR) 8 Petitioner, ORDER GRANTING MOTION TO DISMISS 9 v. 10 XAVIER BECERRA, (Dkt. No. 7) 11 Respondent. / 12 13 INTRODUCTION 14 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254 challenging the criminal judgment of a state court. Respondent 16 filed a motion to dismiss the petition as untimely. Petitioner opposed the motion, and 17 respondent filed a reply brief. After careful consideration of the record and for the reasons 18 discussed below, the motion to dismiss is GRANTED and the case is DISMISSED. 19 STATEMENT 20 The parties do not dispute the following. On July 10, 2013, petitioner pled no contest to 21 two sex offense charges against a minor. On September 18, 2013, the trial court sentenced 22 petitioner to a term of five years in state prison. Petitioner did not file a direct appeal. On June 23 25, 2014, petitioner filed a petition for a writ of habeas corpus in Alameda County Superior 24 Court,1 and the court denied it on the same day. Approximately three and a half years later, on 25 February 8, 2018, petitioner filed another petition in the same superior court. Petitioner had 26 counsel for that petition. The superior court denied it on March 5, 2018. On July 31, 2018, 27 28 1In any proceeding in which petitioner represented himself, the mailbox rule applies. See Noble v. 1 petitioner filed a pro se petition for a writ of habeas corpus in the California Supreme Court, 2 and the court denied the petition on February 12, 2019. He filed the instant federal petition on 3 August 6, 2019. 4 ANALYSIS 5 The parties do not dispute that petitioner did not file the instant petition within the one- 6 year statute of limitations for federal habeas petitions. See 28 U.S.C. § 2244(d). Federal habeas 7 petitions challenging state court convictions or sentences must be filed within one year of the 8 latest of the date on which the judgment became final after the conclusion of direct review or 9 the time passed for seeking direct review 28 U.S.C. § 2244(d)(1)(A). Petitioner did not seek 10 direct review of his petition in the California Supreme Court, and the time for doing so expired 11 on November 17, 2013. See Cal. Rules of Court 8.500(e)(1). Petitioner’s judgment became 12 “final” on that date under section 2244(d)(1)(A), which gave petitioner until November 17, 13 2014, in which to file his federal petition. He did not file the instant petition until August 19, 14 2019, nearly five years later. Thus, absent tolling, the petition is untimely. 15 Tolling of the limitations period is provided for the time during which a properly filed 16 application for state post-conviction or other collateral review is pending in state court. 28 17 U.S.C. 2244(d)(2). The limitations period was tolled under this provision for the one day (June 18 25, 2014) that petitioner’s first state habeas petition was pending in the Alameda County 19 Superior Court. Although petitioner filed additional state habeas petitions in February 2018 and 20 July 2018, the limitations period had long since expired, and there is no tolling under Section 21 2244(d)(2) for state petitions filed after the limitations period has already run. See Ferguson v. 22 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). There was also no tolling during the three-plus 23 year gap between petitioner’s first and second state habeas petitions because gap tolling does 24 not apply to an unreasonably long delay between state habeas petitions in California. See Evans 25 v. Chavis, 546 U.S. 189, 198 (2006); see, e.g., Velasquez v. Kirkland, 639 F.3d 964, 968 (9th 26 Cir. 2011 (no tolling during gaps of 81 and 91 days because delays of that length were 27 unreasonable). Consequently, the only statutory tolling was one day, far short of the tolling 28 necessary to render the petition timely. The parties do not dispute this point. 1 Petitioner argues that he is entitled to equitable tolling during the three-plus year gap 2 between his frist two state habeas petitions. To begin with, even with tolling for that entire 3 time, the instant petition would still be untimely because it was filed more than five years after 4 the limitations period had run. Put differently, after petitioner’s second habeas petition was 5 denied on March 5, 2018, approximately 18 months of untolled time elapsed before he filed the 6 instant petition on August 6, 2019. Even with the equitable tolling petitioner seeks, therefore, 7 the one-year limitations period would have expired before he filed the instant petition. 8 Additionally, petitioner has not shown grounds for equitable tolling. “[A] 'petitioner' is 9 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, 10 and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” 11 Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). The petitioner 12 has the burden to show that he is entitled to equitable tolling. Ibid. The first prong requires a 13 petitioner to show that he was reasonably diligent during the existence of the extraordinary 14 circumstances that prevented his timely filing. Bibbs v. LeGrand, 767 F.3d 879, 892 (9th Cir. 15 2015). Petitioner claims that equitable tolling should apply because his trial counsel failed to 16 conduct a sufficient investigation into his offense. There is no authority that trial counsel’s 17 ineffectiveness constitutes an extraordinary circumstance for purposes of equitable tolling. 18 More importantly, there is no nexus between counsel’s failure to investigate the offense and 19 petitioner’s inability to file his petition on time. Petitioner does not claim that he did not have 20 access to his record or his counsel’s files about his cases, nor does he allege that counsel misled 21 him or prevented him from filing a habeas petition in the state or federal courts sooner. 22 Petitioner also makes no showing of diligence as he does not describe what efforts, if any, he 23 made to file the instant petition, investigate his case, or locate counsel either during years 24 between his state habeas petitions or after he completed those petitions. Equitable tolling does 25 not apply here because petitioner has not shown that despite his diligence, extraordinary 26 circumstances prevented him from filing the instant petition. 27 Neither equitable nor statutory tolling save the instant petition --- filed over five years 28 after the limitations period expired --- from being untimely. 1 CONCLUSION 2 For the foregoing reasons, respondent’s motion to dismiss the petition as untimely is 3 GRANTED and the petition is DISMISSED. 4 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 5 rule on whether a petitioner is entitled to a certificate of appealability in the same order in 6 which the petition is denied. Petitioner has failed to make a substantial showing that a 7 reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v. 8 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted 9 in this case. 10 The clerk shall enter judgment and close the file. 11 IT IS SO ORDERED. 12 Dated: June 2 4 , 2020. 13 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28