Brown v. Miller
| Decision Date | 21 January 2015 |
| Docket Number | Case No. EDCV 14-1864 RNB |
| Court | U.S. District Court — Central District of California |
| Parties | WILLIE BROWN, Petitioner, v. AMY MILLER, Warden, Respondent. |
On September 2, 2014,1 petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein. The Petition purported to be directed to a conviction sustained by petitioner in San Bernardino County Superior Court on October 13, 2004, following petitioner's guilty plea to three counts of elder abuse in violation of Cal. Penal Code § 368(b)(1) and his admission of special allegations that the abuse had caused death for one of the counts and great bodily injury for the other two. The Petition alleged (1) that the guilty plea was involuntary and unintelligent because petitioner was not advised during the pleacolloquy that, in order to be guilty of the elder abuse charges, he "had to have an existing legal duty to act, care or control which petitioner did not have"; and (2) that his guilty plea was the product of ineffective assistance of counsel in that trial counsel failed to research the law or investigate the facts of the case and failed to advise petitioner of the essential elements of the elder abuse offense prior to advising petitioner to plead guilty.
Now pending before the Court and ready for decision is respondent's Motion to Dismiss on the ground that the Petition is time barred under 28 U.S.C. § 2244(d). Petitioner failed to file opposition to the Motion to Dismiss within the allotted time or request an extension of time to do so. For the reasons discussed hereafter, the Motion to Dismiss is granted and this action is dismissed with prejudice.
On October 13, 2004, the trial court sentenced petitioner in accordance with the terms of the negotiated plea bargain agreement to 18 years in state prison. Petitioner did not appeal from his conviction or sentence.
Petitioner's first collateral challenge took the form of a petition for writ of habeas corpus constructively filed in San Bernardino County Superior Court on or about June 14, 2013 (signature date). The claims raised in that petition generally corresponded to the two grounds for relief being alleged in the Petition herein and included the same claim also being made in the Petition herein that petitioner is actually innocent of the elder abuse charges (as well as the same supporting declarations from petitioner and his daughter). In an Order filed on August 29, 2013, the Superior Court denied the petition on the procedural ground that petitioner had substantially delayed seeking habeas relief and had not established good cause or justification for his delay. In its Order, the Superior Court also found that petitioner had not met his burden of establishing his actual innocence.
Next, petitioner constructively filed a habeas petition in the California Court of Appeal on October 22, 2013, in which he challenged the Superior Court's denial of his habeas petition and reasserted his actual innocence claim. That petition was summarily denied without comment or citation to authority on November 6, 2013.
Petitioner constructively filed a Petition for Review of the Court of Appeal decision on November 13, 2013 (proof of service date). The California Supreme Court summarily denied that petition without comment or citation to authority on January 15, 2014.
The constructive filing of the Petition herein followed over seven months later on September 2, 2014.
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, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). 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 and 523 U.S. 1061 (1998).2 28 U.S.C. § 2244(d) provides:
Under California law in effect at the time of petitioner's conviction, an appeal had to be filed within 60 days after the rendition of the judgment. See Cal. Rules of Court, former Rule 31(a). Where the judgment of conviction was entered upon a guilty plea, the defendant was required to file a notice of intended appeal within the 60-day period, accompanied by a statement "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings"; the appeal did not become operative unless and until the trial court executed and filed a certificate of probable cause for appeal. See Cal. Rules of Court, former Rule 31(d); see also Cal. Penal Code § 1275. Consequently, "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review" here was December 12, 2004, when petitioner's time to file an intended notice of appeal expired.
Petitioner has made no contention that he was impeded from filing his federal petition by unconstitutional state action and thereby entitled to a later trigger date under § 2244(d)(1)(B). Moreover, petitioner has no basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(C) with respect to either of his claims because the claim is based on a federal constitutional right that was initially recognized by the United States Supreme Court subsequent to the date his conviction became final and that has been made retroactively applicable to cases on collateral review. Finally, for purposes of § 2244(d)(1)(D), the statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Here, neither of petitioner's claims purports to be based on facts of which petitioner was unaware or which could not have been discovered through the exercise of due diligence prior to December 12, 2004, the date his judgment of conviction became final. Accordingly, petitioner has no basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(D).
The Court therefore finds that, unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was December 12, 2005. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
The burden of demonstrating that the AEDPA's one-year limitation period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005); Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), modified on other grounds, 447 F.3d 1165 (2006), cert. denied, 549 U.S. 1134 (2007); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). For the reasons discussed in the next two Sections, the Court finds and concludes that petitioner has not met his burden with respect to the tolling issue.
28 U.S.C. § 2244(d)(2) provides:
"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."
Here, the Court finds that petitioner has not met his burden of establishing entitlement to any statutory tolling of the limitation period under 28 U.S.C. § 2244(d)(2) because, by the time petitioner constructively filed the first of his state post-conviction petitions on or about June 14, 2013, the limitation period already had run 7-1/2 years earlier and could not be reinitiated. See, e.g., Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (), cert. denied, 540 U.S. 924 (2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 1143 (2002).
In Holland v. Florida, - U.S. -, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010), the Supreme Court held that the AEDPA's one-year limitation period also is subject to equitable tolling in appropriate cases. However, in order to be entitled to equitable tolling, the petitioner must show both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented his timely filing. See Holland, 130 S. Ct. at 2562 (quoting Pace,...
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