Cate v. Ayers, No. Civ. S-01-0384 WBS JFM P (E.D. Cal. 12/28/2001)
| Decision Date | 28 December 2001 |
| Docket Number | No. Civ. S-01-0384 WBS JFM P.,Civ. S-01-0384 WBS JFM P. |
| Parties | EUGENE ROBERT CATE, Petitioner, v. ROBERT L. AYERS, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On November 9, 2001, the magistrate judge filed findings and recommendations which recommended that respondent's June 28, 2001 motion to dismiss be denied. Respondent filed objections to those findings and recommendations on November 28, 2001. In accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of the case.
On August 22, 1995, petitioner was sentenced in state court to life without possibility of parole, consecutive to a determinate 18-year prison term, based on his conviction for first degree murder with special circumstances. Petitioner's conviction was affirmed by the California Supreme Court on January 15, 1997 and became final 90 days thereafter, on April 15, 1997. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
On January 16, 1998, petitioner filed a petition for writ of habeas corpus in the Del Norte County Superior Court. That petition was denied on February 19, 1998. On April 16, 1998, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. That petition was denied on April 21, 1998. On May 5, 1999, petitioner filed a petition for writ of habeas corpus in the Siskiyou County Superior Court. That petition was denied on May 25, 2000.
On May 18, 1999, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California. That petition was transferred to this court on July 2, 1999 and assigned Case No. CIV S-99-1466 WBS JFM P. On June 2, 2000, with no petition pending in any state court, and with no petition ever having been filed in the California Supreme Court, Case No. CIV S-99-1466 WBS JFM P was dismissed by this court as barred by the statute of limitations.
Then, on August 28, 2000, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. That petition was denied on January 30, 2001. On February 26, 2001, petitioner filed the instant petition, Case No. CIV. S-01-0384 WBS JFM P. Respondent filed a motion to dismiss in this case on June 28, 2001, arguing that: 1) the instant petition is barred by the statute of limitations; and 2) the instant petition is a second or successive petition and therefore must be dismissed because petitioner has not obtained authorization to proceed from the Court of Appeals for the Ninth Circuit. The magistrate judge, by order dated November 9, 2001, has recommended that the motion to dismiss be denied on both grounds.
Respondent concedes that this court is bound to follow the tolling rule set forth by the Court of Appeals for the Ninth Circuit in Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (May 1, 2000) and restated in Saffold v. Newland, 224 F.3d 1087 (9th Cir. July 17, 2000), opinion amended and superseded on denial of rehearing, 250 F.3d 1262 (9th Cir. May 23, 2001), cert. granted, 122 S.Ct. 393 (Oct. 15, 2001).
The applicable statue of limitations in this case is the one-year period set forth in Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEPDA"). See 28 U.S.C. § 2244 et seq. The statute further provides that [t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The Nino and Saffold opinions dictate how this court must interpret the term "pending" for purposes of calculating a tolling period under the AEDPA.
In Nino v. Galaza, the court held that AEDPA's one-year statute of limitations "is tolled from the time the first habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." 183 F.3d at 1006. The court further crystallized that principle in Saffold v. Newland. There, the court reversed the district court and found that "Saffold had a state collateral proceeding `pending' within the meaning of AEDPA's tolling provision,. . . during the entire period from the time he filed his state petition in the trial court until the California Supreme Court denied his habeas petition," including during a four and one-half month period between the Court of Appeals' denial of his petition and his filing of a petition in the California Supreme Court. 250 F.3d at 1265-1266.
The Saffold holding has been the subject of some judicial criticism. See e.g., Fernandez v. Sternes, 227 F.3d 977, (7th Cir. 2000) ( ); Robinson v. Rick, 163 F. Supp.2d 155 (E.D. N Y 2001) ("to say that a post-conviction motion remains `pending' even when there is no undecided application before any court, would distort the plain meaning of the term"); Welch v. Newland, 267 F.3d 1013, 1018 (9th Cir. 2001) ().1
In this case, application of the Saffold rule creates the very "there and not there at the same time" Cheshire-cat-like statute of limitations that the Seventh Circuit warned of in Fernandez v. Sternes, 227 F.3d at 980-981.2 In June of 2000, nine months having passed after petitioner's conviction became final and before he filed his first state habeas petition, 25 months having passed since petitioner's first state habeas petition was denied by the California Court of Appeals, and with no petition having been filed with the California Supreme Court,3 this court adopted the recommendation of the magistrate judge and ruled that petitioner's district court petition was barred by the statute of limitations.4
Approximately three months after the court's June 2000 order, however, petitioner finally filed a petition for writ of habeas corpus in the California Supreme Court. Thus, applying Saffold's rule, though petitioner's first district court petition, filed 21 months earlier, was barred by the statute of limitations, petitioner's second district court petition is not. According to Saffold, now that petitioner has brought his habeas claims to the highest court of the state, the entire period during which he "pursued" state collateral review is tolled, including those lengthy periods during which he did nothing and had no petition before any state court. The statute in this case must therefore be tolled from January 16, 1998 to January 30, 2001.5
276 days passed between the finality of petitioner's conviction on April 15, 1997 and the filing of his first state habeas petition on January 16, 1998. The instant district court petition was filed on February 26, 2001, 27 days after the tolling period ended on January 30, 2001. Implementing the tolling period mandated by Saffold, only the sum of those two periods, a total of 303 days, may be counted against the one-year statute of limitations. The court will therefore, applying Saffold,6 adopt the magistrate judge's finding that, though the prior district court petition was barred by the statute of limitations, the instant petition is not.
If this is a second or successive petition, pursuant to 28 U.S.C. § 2244(b), petitioner must obtain authorization from the Court of Appeals for the Ninth Circuit before he can proceed with this petition. According to the rule set forth in Slack v. McDaniel, a petition will not be deemed a "second or successive" petition for the purposes of Section 2244 where the prior petition "was not adjudicated on the merits." See Green v. White, 223 F.3d 1001, 1002 n. 1 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 485-486 (2000) ()
In this case, as discussed above, petitioner's first district court habeas petition was dismissed on the ground that it was barred by the statute of limitations. The law is clear that a dismissal based on the statute of limitations is an adjudication of the merits of the claim. See Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330 n. 3 (9th Cir. 1981) (). See also Plaut v. Spendthrift Farm, 514 U.S. 211, 228 (1995) ()(emphasis added)(citing Fed.R.Civ.P. 41(b) and United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916)). Thus, because petitioner's prior district court petition was adjudicated on its merits, petitioner's instant...
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