Brand v. Beard
| Decision Date | 30 May 2013 |
| Docket Number | No. CV 12-09178-VBK,CV 12-09178-VBK |
| Parties | RONALD BRAND, Petitioner, v. JEFFREY BEARD, Respondent. |
| Court | U.S. District Court — Central District of California |
RONALD BRAND, Petitioner,
v.
JEFFREY BEARD,1 Respondent.
No. CV 12-09178-VBK
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
DATED: May 30, 2013
Ronald Brand (hereinafter referred to as "Petitioner"), a California state prisoner proceeding pro se, filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition"), pursuant to 28 U.S.C. § 2254 on October 25, 2012, in the United States District Court for the Central District of California.2 Petitioner also executed
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a "Consent to Proceed Before a United States Magistrate Judge." In accordance with the Court's Order requiring Respondent to file a response, on February 28, 2013, Respondent filed a "Motion to Dismiss Petition for Writ of Habeas; Memorandum of Points and Authorities" ("MTD") and a "Notice of Lodging" contending that the Petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1) as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and alternatively that ground one of the Petition is unexhausted and conclusory. Respondent also executed a "Consent to Proceed Before a United States Magistrate Judge." On March 27, 2013, Petitioner filed an "Objection to the Motion to Dismiss" ("Obj.") and a "Supplemental [sic] to the Objection to the Motion to Dismiss."
Having reviewed the allegations in the Petition and the matters set forth in the record, the Motion to Dismiss, and Petitioner's Opposition, it is ORDERED that the Motion to Dismiss be granted and the Petition be dismissed.
On October 21, 2008, Petitioner pleaded no contest in the Los Angeles County Superior Court to twelve counts of identity theft in violation of California Penal Code ("PC") § 530.5(a) and one count of forgery of an official seal in violation of PC § 472. (Lodged Document No. 1 at 4-5; Lodged Document No. 3 at 1.) Petitioner also admitted he served a prior prison term within the meaning of PC § 667.5(b) for a
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prior grand theft conviction. (Lodged Document No. 1 at 5.) On that same day, Petitioner was sentenced to a 12-year prison term, the sentence was suspended, and Petitioner was placed on formal probation for five years. (Lodged Document No. 1 at 6-10; Lodged Document No. 3 at 1.) Petitioner did not appeal the judgment.
On November 17, 2010, Petitioner's probation was revoked and he was remanded to custody. (Lodged Document No. 1 at 10-11.)
On June 29, 2011, counsel for Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court.3 (Lodged Document No. 2.) On August 8, 2011, the court denied the petition because it was untimely and Petitioner had offered no justification for the nearly three-year delay, citing In re Clark, 5 Cal. 4th 750, 783 (1993) and In re Seaton, 34 Cal. 4th 193, 199-200 (2004). The court alternatively denied the petition on the merits. (Lodged Document No. 3; Lodged Document No. 1 at 14-16.)
On October 5, 2011, Petitioner filed a pro se habeas petition in the California Court of Appeal.4 (Lodged Document No. 4.) On October 27, 2011, the court denied the petition as "untimely and, on the merits, [P]etitioner has not presented facts or evidence to demonstrate entitlement to relief." (Lodged Document No. 5.)
On November 10, 2011, a Los Angeles County Superior Court judge found Petitioner to be in violation of probation. (Lodged Document No. 1 at 17-18.) He was ordered to serve his 12-year state prison sentence
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in county jail under California's Criminal Justice Realignment Act (see PC § 1170(h)). (Lodged Document No. 1 at 18-21.)
On December 19, 2011, Petitioner constructively filed a habeas petition in the California Supreme Court. (Lodged Document No. 7.) On May 9, 2012, the court denied the petition with citations to People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 (1949). (Lodged Document No. 8 at 2.)
Meanwhile, on December 21, 2011, Petitioner filed a notice of appeal in the California Court of Appeal challenging the November 10, 2011 finding that Petitioner was in violation of probation. (Lodged Document No. 6.) On May 16, 2012, Petitioner filed a notice of abandonment of his appeal, and on May 18, 2012, the Court of Appeal dismissed his appeal. (Lodged Document No. 6.)
On June 15, 2012, Petitioner constructively filed a second habeas petition in the California Supreme Court. (Lodged Document No. 9.) On September 26, 2012, the court denied the petition "on the merits" with citations to Harrington v. Richter, 526 U.S. -, 131 S. Ct. 770, 785 (2011), and Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590 (1991). (Lodged Document No. 10 at 2.)
The within Petition was constructively filed on October 10, 2012.
Petitioner contends the following, inter alia:
1. "California State Supreme Court in Petitioner['s] view, has violated his [S]ixth and [F]ourteenth Amendment rights";
2. The trial court improperly denied Petitioner's request
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to represent himself under Faretta,5 and trial counsel was ineffective by failing to inform Petitioner of his right to appeal or otherwise perfect an appeal so Petitioner could challenge the trial court's Faretta ruling.
(See Petition at 5-6; Petition Memoranda at 1-4, 6-11.)6
In the Motion to Dismiss, Respondent contends that the Petition should be dismissed on the grounds it is untimely, and because ground one is unexhausted and conclusory.
A. The Petition Is Facially Untimely.
Since the Petition was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") on April 24, 1996, the Court's consideration of the Petition's timeliness is governed by 28 U.S.C. § 2244(d), as amended by the AEDPA. See Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 & 523 U.S. 1061 (1998).7 That section provides:
"(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody
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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;(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."
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
In most instances, a state prisoner's AEDPA limitations period will be governed by § 2244(d)(1)(A). It is only in "rare instances" that, pursuant to § 2244(d)(1)(B)-(D), "the limitation period may run from a date later than the date on which judgment becomes final." Baker v.
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State of California, No. C 99-2088 CRB (PR), 2000 WL 74071 at *1 n.1 (N.D. Cal. Jan. 25, 2000). In the Motion to Dismiss, Respondent contends that the running of the limitations period in this case is governed by § 2244(d)(1)(A). (MTD at 4 & n.6.)
1. Application of § 2244(d)(1)(A) Renders the Petition Facially Untimely.
Under § 2244(d)(1)(A), the statute began to run at the completion of direct review in the state courts. Consequently, the judgment became final when the time to file an appeal expired. Gonzalez v. Thaler, 565 U.S. -, 132 S. Ct. 641, 646, 653-54 (2012); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). Under California law, Petitioner had 60 days in which to file and perfect his appeal. See Cal. R. Ct. 8.308(a). As Petitioner was sentenced on October 21, 2008, his time to appeal expired on December 22, 2008.8 Id.; see also PC § 1237(a) (a "sentence" and "an order granting probation" constitute a "final judgment" for purposes of a defendant's right to appeal).9 Therefore, Petitioner's conviction was "final" on December 22, 2008, and he had until December 22, 2009, in which to file a timely federal habeas petition. 28 U.S.C.
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§ 2244(d)(1)(A); see Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Here, Petitioner did not constructively file the within Petition until October 10, 2012, almost three years after the statute of limitations had already expired. Absent statutory or equitable tolling, the within Petition is untimely.
2. Petitioner Is Not Entitled to an Alternate Start Date of the Statute of Limitations Period.
a. State-Created Impediment.
In rare instances, AEDPA provides that its one-year limitations...
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