Alcox v. Hartley
| Decision Date | 23 April 2009 |
| Docket Number | No. CV 08-1587-JVS(RC).,CV 08-1587-JVS(RC). |
| Citation | 614 F.Supp.2d 1064 |
| Parties | Joel ALCOX, aka Joel Albert Alcox, Petitioner, v. James HARTLEY, Warden, Avenal State Prison, Respondent. |
| Court | U.S. District Court — Central District of California |
Juliana Drous, Law Offices of Juliana Drous, San Francisco, CA, for Petitioner.
Jason C. Tran, Office of the Attorney General of California, Los Angeles, CA, for Respondent.
Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman,
IT IS ADJUDGED that the petition for writ of habeas corpus and the action are dismissed as untimely.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered dismissing the petition and the action as untimely.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On May 8, 1987, in Santa Barbara Superior Court case no. SM50213, a jury convicted petitioner Joel Alcox, aka Joel Albert Alcox, of one count of first degree murder in violation of California Penal Code ("P.C") § 187 (count 1), one count of robbery in violation of P.C. § 211 (count 2), and one count of first degree burglary in violation of P.C. § 459 (count 3), and the jury found it to be true that petitioner was armed as a principal with a firearm during the commission of the crimes within the meaning of P.C. § 12022(a).1 Clerk's Transcript ("CT") 729-35. The petitioner was sentenced to the total term of 26 years to life in state prison. CT 1020-22.
Petitioner appealed his convictions and sentence to the California Court of Appeal, CT 1023, which in an unpublished opinion filed October 6, 1988, modified the judgment to stay the sentences on counts 2 and 3, and affirmed the judgment as modified. Lodgment nos. 4-7. The petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on December 21, 1988. Lodgment nos. 8-9.
On February 28, 2002, petitioner, proceeding through counsel, filed a petition for habeas corpus relief in the Santa Barbara County Superior Court, Lodgment nos. 10-14, which issued an order to show cause to the State of California, and, after briefing by the parties, denied the petition "without prejudice to its renewal should admissible evidence of actual innocence warranting an evidentiary hearing become available." Lodgment no. 15.2
On October 9, 2003, petitioner, still proceeding through counsel, filed his second petition for writ of habeas corpus in the Santa Barbara County Superior Court, and that petition included a declaration from Richard Lothery. Habeas Corpus Clerk's Transcript ("HCCT") at 1-478. The Superior Court again issued an order to show cause, and, after briefing by the parties, appointed counsel to represent petitioner and scheduled an evidentiary hearing. HCCT 479-82, 486-743. On June 22, 2005, following the evidentiary hearing, the Superior Court granted the petition for habeas corpus relief, finding petitioner was denied his Sixth Amendment right to effective assistance of counsel; however, the Superior Court did not make a finding of factual innocence. HCCT 1147-59; CT 1148, 1151-55.
The State of California appealed the judgment to the California Court of Appeal, Lodgment nos. 16-20, which reversed the judgment in a published opinion filed March 10, 2006, and modified the opinion on denial of rehearing on March 28, 2006. Lodgment nos. 21-23; In re Alcox, 137 Cal.App.4th 657, 40 Cal.Rptr.3d 491 (2006). On April 18, 2006, petitioner filed a petition for review in the California Supreme Court, which denied review on June 28, 2006. Lodgment nos. 24-25.
On July 27, 2006, petitioner, still proceeding through counsel, filed his third petition for habeas corpus relief in the Santa Barbara County Superior Court, which denied the petition on November 20, 2006, finding the petition to be a "successive" petition and also finding "the purported new evidence [does not] give rise to a constitutionally grounded exception [to filing a successive petition] ... especially ... in light of both the Superior Court and Appellate Court findings of fact and conclusions of law in the prior writ." Lodgment nos. 26-27. On December 5, 2006, petitioner filed a habeas corpus petition in the California Supreme Court, which, after requesting an informal response from the State of California, denied the petition on January 3, 2008. Lodgment nos. 28-32.
On March 7, 2008, petitioner, proceeding through counsel, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on July 10, 2008, respondent filed a motion to dismiss the petition, arguing it is untimely. On September 8, 2008, petitioner filed his opposition to the motion to dismiss.
In the pending habeas corpus petition, petitioner raises the sole claim that he "was denied his Sixth Amendment right to effective assistance of counsel at his 1987 trial."3
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir.2007), as follows:
(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 judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
* * *
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 15
28 U.S.C. § 2244(d).
The petitioner's conviction became final long before the passage of AEDPA, which was effective April 24, 1996. However, AEDPA's one-year statute of limitations did not begin to run prior to AEDPA's enactment. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999); see also Lindh v. Murphy, 521 U.S. 320, 322-23, 336-37, 117 S.Ct. 2059, 2061, 2068, 138 L.Ed.2d 481 (1997) (). Thus, a state prisoner such as petitioner, whose conviction became final before AEDPA's effective date, had one year and one day from AEDPA's enactment, or until April 24, 1997, to file a federal habeas corpus petition. Bryant, 499 F.3d at 1059; Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006), cert. denied sub nom., Belleque v. Kephart, 549 U.S. 1317, 127 S.Ct. 1880, 167 L.Ed.2d 386 (2007).
The instant action was not filed until March 7, 2008—almost eleven years after the statute of limitations ran. However, this Court must consider whether the statute of limitations was statutorily tolled or equitably tolled. Initially, the filing of petitioner's state habeas petitions did not statutorily toll the limitations period since all of the state habeas corpus petitions were filed after the statute of limitations had expired; thus, they neither tolled nor revived the expired limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001), cert. denied, 538 U.S. 949, 123 S.Ct. 1627, 155 L.Ed.2d 492 (2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000).
Nor does Section 2244(d)(1)(D), which provides the statute of limitations commences later than under Section 2244(d)(1)(A) if petitioner did not know, or through the exercise of due diligence could not discover, the factual predicate of his claims assist petitioner. Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir.2003); Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir.2001); see also Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004) , cert. denied, 544 U.S. 1037, 125 S.Ct. 2261, 161 L.Ed.2d 1067 (2005). "[T]he date of the `factual predicate' for [petitioner's] claim under § 2244(d)(1)(D) ... is determined ... by inquiring when [petitioner] could have learned of the factual basis for his claim through the exercise of due diligence[,]" Redd, 343 F.3d at 1084; Schlueter, 384 F.3d at 74, not when petitioner learns the legal significance of those facts. Hasan, 254 F.3d at 1154 n. 3; Owens, 235 F.3d at 359. "Due diligence ... require[s] reasonable diligence in the circumstances." Schlueter, 384 F.3d at 74. Moreover, "[t]he test of due diligence under section 2244(d)(1)(D) is objective, not subjective." Wood v. Spencer, 487 F.3d 1, 5 (1st Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 260, 169 L.Ed.2d 191 (2007). "[...
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