Hood v. Galaza

• Decision Date: 25 February 1999
• Docket Number: No. 98-CV-843 H LAB.,98-CV-843 H LAB.
• Citation: 47 F.Supp.2d 1144
• Parties: Victor Lyle HOOD, Plaintiff, v. George GALAZA, Warden, Defendant.
• Court: U.S. District Court — Southern District of California

47 F.Supp.2d 1144

Victor Lyle HOOD, Plaintiff, v. George GALAZA, Warden, Defendant.

No. 98-CV-843 H LAB.

United States District Court, S.D. California.

February 25, 1999.

Order Adopting Report and Recommendation of Magistrate Judge; Denying Petition for Writ of Habeas Corpus

HUFF, Chief Judge.

Petitioner in the above-entitled matter filed a petition for writ of habeas corpus under 28 U.S.C. section 2254. Respondent opposed the petition. On November 19, 1999, the magistrate judge in this matter issued a Report and Recommendation, recommending the petition be denied. On December 21, 1999, petitioner filed objections to the Report and Recommendation. On February 11, 1999, respondent filed a reply to petitioner's objections. After fully considering the papers filed and the law, the court adopts the Report and Recommendation issued by the magistrate judge and denies the petition for writ of habeas corpus.

Background

Petitioner was convicted of second degree murder by a jury verdict on September 11, 1979, in the Superior Court for the County of San Diego. On November 2, 1979, petitioner was sentenced to fifteen years to life. On December 12, 1979, petitioner filed a notice of appeal with the California Court of Appeal. That court affirmed the judgment on April 21, 1981. On May 21, 1981, petitioner filed a petition for hearing with the California Supreme court. That petition was denied on July 8, 1981.

Petitioner took no further action until April 15, 1997, when he mailed a petition for writ of habeas corpus to the Kings County Superior Court. The petition was rejected by Kings County on April 16, 1997, as it should have been filed in San Diego County Superior Court. On April 22, 1997, petitioner mailed his petition to San Diego Superior Court, and it was file-stamped on April 25, 1997. The San Diego Superior Court denied the petition on June 25, 1997.

On July 29, 1997, petition mailed his petition for a writ of habeas corpus to the California Court of Appeal. That petition was denied on August 19, 1997. Petitioner mailed his petition to the California Supreme Court on September 16, 1997. He received notice of the Supreme Court's denial of his petition on March 30, 1998.

Petitioner incorrectly mailed the instant habeas corpus petition to the United States District Court for the Eastern District of California on March 31, 1998. The petition was transferred to this court on May 4, 1998. On October 28, 1998, the court ordered additional briefing from respondent on the application of the "mailbox rule" to the petition. On November 18, 1998, the magistrate judge in this matter issued a Report and Recommendation, recommending that Hood's section 2254 petition for writ of habeas corpus be dismissed as time-barred, pursuant to 28 U.S.C. section 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (eff.Apr. 24, 1996).

DISCUSSION

I. Statutory Tolling

Under the amendments to habeas corpus law effected by the AEDPA, state prisoners had at least until April 24, 1997 to file section 2254 motions challenging their conviction or sentence if the challenge arose prior to the enactment of the AEDPA. Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc).. The AEDPA amended 28 U.S.C. section 2244 by imposing a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction, which runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In pertinent part, Section 2244(d)(1) provides

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus 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 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.

28 U.S.C. § 2244(d)(1). The AEDPA's time limit was intended to halt the unacceptable delay which has developed in the federal habeas process. Beeler, 128 F.3d at 1288 (9th Cir.1997).

Because petitioner Hood's conviction became final before the AEDPA's enactment, the one-year statute of limitations began to run on the AEDPA's effective date of April 24, 1996, giving petitioner until April 23, 1997, to file a federal petition for habeas corpus. However, the AEDPA also requires 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); see Ashmus v. Calderon, 977 F.Supp. 987, 992 (N.D.Cal. 1997).

Additionally, this court will apply the "mailbox rule" established in Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), to habeas corpus petitions filed under 28 U.S.C. section 2254. See, e.g., James v. Madison Street Jail, 122 F.3d 27 (9th Cir.1997) (applying Houston rule to the filing of trust account statements); Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir.1995) (applying Houston rule to the service of a Rule 59(e) motion); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir.1994) (applying the Houston rule to the filing of a Rule 50(b) motion); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir.1993) (applying the Houston rule to the service of discovery responses). The "mailbox rule" provides that a prisoners' notice of appeal is considered filed when delivered to prison authorities for mailing to the court. Houston, 487 U.S. at 276, 108 S.Ct. 2379. Thus, this court will consider Hood's documents filed on the date they were handed to prison officials for mailing.

To determine whether petitioner Hood's petition is time-barred, the court finds he is entitled to the following tolling: (1) 0 days for the petition which was erroneously placed in the mail to the Kings County Superior Court on April 15, 1997 and rejected on April 16, 1997; (2) 64 days for the petition to the San Diego County Superior Court, which was placed in the mail on April 22, 1997, and denied on June 25, 1997; (3) 21 days for the petition to the California Court of Appeal, which was placed in the mail on July 29, 1997, and denied on August 19, 1997; (4) 195 days for the petition to the California Supreme Court, which was place in the mail on September 16, 1997, and which petitioner received notice of on March 30, 1998 (the record does not reflect the date of denial); and (5) 0 days for the present federal habeas corpus petition, which was erroneously mailed to the U.S. District Court for the Eastern District of California on March 31, 1998, and properly filed in the Southern District of California on May 4, 1998.

The text of section 2244(d)(2)'s tolling provision requires a petition to be "properly filed." See Holloway v. Corcoran, 980 F.Supp. 160, 161 (D.Md.1997), quoting Hughes v. Irvin, 967 F.Supp. 775, 778 (E.D.N.Y.1997). Hood is therefore not entitled to tolling for instances when he sent his petition to an incorrect place of filing,. Thus, although petitioner Hood erroneously sent his habeas corpus petition to the Kings County Superior Court, rather than the San Diego County Superior Court, he is not entitled to tolling for that time. Similarly, even though Hood sent his habeas corpus petition to the Eastern District of California, rather than the Southern District of California, he is not entitled to tolling for that time. Thus, petitioner is entitled to 280 days tolling, bringing the filing deadline for his petition to January 28, 1998 (April 23, 1997 + 280 days). Because Hood did not file the instant habeas corpus petition until May 4, 1998, his petition is untimely.

Even if the petitioner is given the benefit of tolling for his incorrectly filed petitions, it would only bring the deadline 35 days forward, until March 4, 1998, and would not prevent his petition from being time-barred. Hood's petition, filed on May 4, 1998, would still be 61 days late.

Petitioner Hood also alleges the prison mail logs do not correctly reflect when he delivered documents to prison authorities for filing. Hood does not provide any evidence of this assertion, but even if the court were to accept it as true, it does not save his petition from being time-barred. If the court were to consider his petition as filed on the date Hood signed it, petitioner would gain four (4) days on his state court petition to the San Diego Superior Court; two (2) days on his petition to the California Court of Appeal, and one (1) day on his petition to the California Supreme Court, for a total of seven (7) days. Petitioner would still be late in filing his petition by 55 days.

Finally, petitioner is mistaken in his belief that the AEDPA statute of limitations should have been tolled continuously after petitioner filed his habeas corpus claim, from April 14, 1997, onward. The periods of time between the denial of one state petition and the filing of another state petition do not toll the statute. See 28 U.S.C. § 2244(d)(1); Sperling v. White, 30 F.Supp.2d 1246, 1249 (C.D.Cal. 1998). Therefore, ...