Hawkins v. Gipson
| Decision Date | 25 February 2014 |
| Docket Number | Case No. 1:13-cv-01532-BAM-HC |
| Court | U.S. District Court — Eastern District of California |
| Parties | LEON HAWKINS, Petitioner, v. CONNIE GIPSON, Warden, Respondent. |
ORDER CORRECTING THE NAME OF
RESPONDENT
ORDER GRANTING RESPONDENT'S MOTION
TO DISMISS THE PETITION (DOC. 10),
DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), AND
DIRECTING THE ENTRY OF JUDGMENT
FOR RESPONDENT
ORDER DECLINING TO ISSUE A
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on October 4, 2013, and on behalf of Respondent on October 7, 2013.
Pending before the Court is the Respondent's motion to dismiss the petition for untimeliness and failure to exhaust state courtremedies, which was filed on November 27, 2013. Petitioner filed opposition on December 19, 2013. Respondent filed a reply on December 23, 2013.
The motion to dismiss was filed on behalf of Respondent Connie Gipson, Warden of the Corcoran State Prison where Petitioner is confined. In the motion, Respondent notes that the correct spelling of Respondent's name is "Gipson," not "Gibson," as the name appeared in the petition. (Doc. 10, 1 n.1.)
Accordingly, it is ORDERED that the name of the Respondent be CORRECTED to reflect Respondent's true name, namely, Connie Gipson, Warden.
Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1) and failed to exhaust state court remedies.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) 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...."
The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are found in copies of the official records of state judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no genuine factual dispute. Because Respondent has not filed a formal answer, and 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, the Court will review Respondent's motion to dismiss pursuant to its authority under Habeas Rule 4.
Petitioner was convicted in the Kings County Superior Court (KCSC) of battery upon a peace officer while confined in state prison and was further found to have suffered two prior serious felony convictions. At the sentencing hearing held on May 14, 2010, the court denied a request pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996) to strike Petitioner's two prior serious felony convictions. The court sentenced Petitioner to an indeterminate state prison term of twenty-five years to life to runconsecutively to the sentence he was serving when he committed the battery. (Lodged Document (LD) 1; LD 2, 1.)
On September 2, 2011, the Court of Appeal of the State of California, Fifth Appellate District (CCA) affirmed the judgment. (LD 2.) Petitioner did not file in the California Supreme Court (CSC) a petition for review of the CCA's affirmance.
Petitioner filed three petitions for habeas corpus in the state courts.1
On June 26, 2012, Petitioner constructively filed a petition for writ of habeas corpus in the CCA (LD 3), which was summarily denied on July 12, 2012, without a statement of reasoning or citation of authority (LD 4).
A petition for writ of habeas corpus was stamped filed in theCCA on July 18, 2012. The petition was substantively identical with the earlier petition. The signature page was dated June 26, 2012, which was the same date reflected on the first state habeas petition's signature page and proof of service. The second state petition lacks a proof of service.
With respect to the first state petition, the delay between signature and filing in the CCA was two days (from June 26, 2012, to June 28, 2012). (LD 3 at form pp. 1, 6.) With respect to the second petition, the delay between signature and filing was over three weeks (June 26, 2012, to July 18, 2012). Applying the mailbox rule to obtain a filing date of June 26, 2012, for the second petition would be unwarranted not only because of the relatively long interval of time between the date appearing next to the signature and the date of filing in the CCA, but also because it does not seem reasonable to infer that Petitioner intended to send at one time two identical petitions to initiate two simultaneous but separate state habeas proceedings. It is more likely that Petitioner intended to resubmit his petition after receiving notice of the denial of his previous petition on July 12, 2012. (LD 4.) Thus, the Court considers Petitioner's second state habeas petition to have been filed on July 18, 2012, the date of the CCA's filing stamp. (LD 5, 1.)
On July 25, 2012, Petitioner's second state habeas petition was summarily denied without a statement of reasoning or citation of authority. (LD 6.)
On July 19, 2012, Petitioner constructively filed a petition for writ of habeas corpus in the CSC (LD 7, form. p. 6), which was denied on October 24, 2012. The docket of the CSC reflects thefollowing note regarding the text of the denial order:
The petition for writ of habeas corpus is denied. (See People v. Duvall (1995) 9 Cal.4th 464, 474; In re Swain (1949) 34 Cal.2d 300, 304.)
(LD 8.)
On September 17, 2013, Petitioner constructively filed the present petition (doc. 1 at 6, 39), in which he alleges that he suffered the ineffective assistance of appellate counsel in violation of his rights under the Sixth and Fourteenth Amendments for counsel's failure to raise on appeal the trial court's alleged abuse of discretion in failing to grant Petitioner's motion to strike a prior conviction under state law (doc. 1).
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, subdivision (d) reads:
28 U.S.C. § 2244(d).
Under § 2244(d)(1)(A), the "judgment" refers to the sentence imposed on the petitioner. Burton v. Stewart, 549 U.S. 147, 156-57 (2007). The last sentence was imposed on Petitioner on May 14, 2010. (LD 1, LD 2 at 1.)
Under § 2244(d)(1)(A), a judgment becomes final either upon the conclusion of direct review or the expiration of the time for seeking such review in the highest court from which review could be sought. Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). The statute commences to run pursuant to § 2244(d)(1)(A) upon either 1) the conclusion of all direct criminal appeals in the state court system, followed by either the completion of denial of certiorari proceedings before the United States Supreme Court; or 2) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state court system followed by the expiration of the time permitted for filing a petition for writ of certiorari. Wixom, 264 F.3d at 897 (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 (1999)).
Here, neither party has indicated that Petitioner sought...
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