Davis v. Brazelton

• Decision Date: 10 May 2013
• Docket Number: Case No.: 1:12-cv-00266-LJO-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: KIRK MONROE DAVIS, Petitioner, v. P. D. BRAZELTON, Respondent.

KIRK MONROE DAVIS, Petitioner,

v.P. D. BRAZELTON, Respondent.

Case No.: 1:12-cv-00266-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: May 10, 2013

FINDINGS AND RECOMMENDATIONS RE:

RESPONDENT'S MOTION TO DISMISS (Doc. 21)

ORDER DIRECTING OBJECTIONS TO BE FILED

WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

On February 22, 2012, Petitioner filed the instant petition, challenging his 2001 conviction for possession of a billy club, for which Petitioner was sentenced under California's Three Strikes Law, using a 1978 conviction for rape and burglary as an enhancement.¹ On April 19, 2012, Petitioner filed a separate federal petition in case no. 1:12-cv-00625-JLT, challenging Petitioner's 1978 conviction.On March 1, 2012, the Court ordered Respondent to file a response to the petition in case no. 1:12-cv-00266-LJO-JLT within sixty days. (Doc. 9). On April 26, 2012, Petitioner filed a motion to amend the instant petition or, alternatively, to supplement the petition with the claims raised in case no. 1:12-cv-00625-JLT. (Doc. 15). Petitioner filed an identical motion in the later-filed case, making the identical request. On April 30, 2012, Respondent filed a statement of non-opposition to the motion to amend and/or supplement pleadings. (Doc. 16). On May 4, 2012, the Court granted Petitioner's motion to supplement or amend the pleadings in this case with those raised in case no. 1:12-cv-00625-JLT, and ordered Respondent to file a response within sixty days. (Doc. 17).

On September 10, 2012, Respondent, in lieu of an answer, filed the instant motion to dismiss the petition, as supplemented by the May 4, 2012 order, as untimely. (Doc. 21). Respondent also contended that various claims were unexhausted and that many failed to state cognizable federal habeas claims. On November 7, 2012, Petitioner filed an opposition to Respondent's motion to dismiss. (Doc. 27). On December 24, 2012, Respondent filed a reply to Petitioner's opposition. (Doc. 33). Thereafter, Petitioner filed yet another document, styled as a "Motion To Allow Response To Reply To Opposition To Dismiss," directed to Respondent's reply. (Doc. 36).² Then, on January 27, 2013, apparently not satisfied with having the last word, Petitioner's counsel fired yet another salvo, arguing that the petition should be deemed timely. (Doc. 39). No further volleys having been fired since January 27, 2013; accordingly, the Court will now address the merits of the instant motion to dismiss.

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules GoverningSection 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

In this case, Respondent's Motion to Dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one year limitation period and Respondent's contention that various claims in the combined petition fail to state cognizable habeas claims and that many of the claims are unexhausted. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.

B. Limitation Period For Filing Petition For Writ Of Habeas Corpus

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on February 22, 2012, and thus, it is subject to the provisions of the AEDPA.

The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:

(1) A 1-year period of limitation shall apply to an application for a writ of habeascorpus 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;

(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.

(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.

28 U.S.C. § 2244(d).

In most cases, the limitation period begins running on the date the petitioner's direct review became final. Here, Petitioner was convicted on August 20, 2001. Petitioner commenced his direct appeal, which concluded when the petition for review filed with the California Supreme Court was denied on October 15, 2003. (Doc. 38, Lodged Documents ("LD") 3, 4). Thus, direct review would have concluded on January 13, 2004, when the ninety-day period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir.1998). Petitioner would then have one year from the following day, January 14, 2004, or until January 13, 2005 absent applicable tolling, within which to file his federal petition for writ of habeas corpus.

As mentioned, the instant petition was filed on February 22, 2012, over seven years after the date the one-year period would have expired. Thus, unless Petitioner is entitled to either statutory or equitable tolling sufficient to account for that span of time, the instant petition is untimely and should be dismissed.³

C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

Under the AEDPA, the statute of limitations is tolled during the time that a properly filed application for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361 (2000). An application is pending during the time that 'a California petitioner completes a full round of [state] collateral review," so long as there is no unreasonable delay in the intervals between a lower court decision and the filing of a petition in a higher court. Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as recognized by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008)(per curium)(internal quotation marks and citations omitted); see Evans v. Chavis, 546 U.S. 189, 193-194, 126 S. Ct. 846 (2006); see Carey v. Saffold, 536 U.S. 214, 220, 222-226, 122 S. Ct. 2134 (2002); see also, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

Nevertheless, there are circumstances and periods of time when no statutory tolling is allowed. For example, no statutory tolling is allowed for the period of time between finality of an appeal and the filing of an application for post-conviction or other collateral review in state court, because no state court application is "pending" during that time. Nino, 183 F.3d at 1006-1007; Raspberry v. Garcia, 448 F.3d 1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is allowed for the period between finality of an appeal and the filing of a federal petition. Id. at 1007. In addition, the limitation period is not tolled during the time that a federal habeas petition is pending. Duncan v. Walker, 563 U.S. 167, 181-182, 121 S.Ct. 2120 (2001); see also, Fail v. Hubbard, 315 F. 3d 1059, 1060 (9th Cir. 2001)(as amended on December 16, 2002). Further, a petitioner is not entitled to statutory tolling where the limitation period has already run prior to filing a state habeas petition. Ferguson v. Palmateer, 321 F.3d820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the...