Kennedy v. Warden, San Quentin State Prison
| Decision Date | 16 April 2014 |
| Docket Number | No. 2:13-cv-02041 LKK KJN DP,2:13-cv-02041 LKK KJN DP |
| Court | U.S. District Court — Eastern District of California |
| Parties | JERRY NOBLE KENNEDY, Petitioner, v. WARDEN, San Quentin State Prison, Respondent. |
Petitioner is a state prisoner under sentence of death. Based on the four-month delay in appointing federal habeas counsel, petitioner moves for equitable tolling of the one-year statute of limitations for filing his federal habeas corpus petition. (ECF No. 14.) For the reasons set forth below, this court finds petitioner should be entitled to equitable tolling and recommends granting petitioner's motion.
In 1993, a jury convicted petitioner of first degree murder and robbery and sentenced him to death. People v. Kennedy, 36 Cal. 4th 595, 602 (2005). On July 25, 2005, the California Supreme Court affirmed petitioner's conviction and sentence on appeal. Id. On October 12, 2005, the California Supreme Court denied a petition for rehearing. On April 17, 2006, the United States Supreme Court denied petitioner's certiorari petition. Kennedy v. California, 547 U.S. 1076.
On June 29, 2005, during the pendency of petitioner's state appeal, the California Supreme Court appointed Judd Iversen as habeas/clemency counsel for petitioner and, as reflected in a later order amending the June 29 order, stated that a state habeas petition would be presumed timely if filed within 36 months. (See Docket for People v. Kennedy, No. S037195 (ECF No. 19-2), entries of June 29, 2005 and Dec. 16, 2005. 1) On November 4, 2005, petitioner filed a nine-page petition for writ of habeas corpus with the California Supreme Court. (Id.) When that petition was submitted, the Clerk of the California Supreme Court filed it, docketed it as "Petition for writ of habeas corpus," and opened a new case, No. S138625. (In re Jerry Noble Kennedy, No. S138625.2) On June 30, 2008, petitioner filed a 589-page "Amended petition for writ of habeas corpus" in case no. S138625. (Id.) The state filed a 280-page informal response in February 2009 and petitioner filed a 188-page reply in June 2010. The California Supreme Court denied that petition summarily on September 18, 2013. Id. The court's one-paragraph order states that each claim was denied on the merits and several were also denied on procedural grounds. None were denied as untimely.
On October 1, 2013, petitioner initiated these federal proceedings by filing motions to appoint counsel and enter a stay of execution. (ECF No. 1.) On October 4, the court granted the motion to appoint counsel and referred the case to the Eastern District's Selection Board for a recommendation of counsel. (ECF No. 8.) Over four months later, on February 14, 2014, based on the recommendation of the Selection Board, the court appointed Mr. Ellis and Mr. Clough to represent petitioner in these proceedings. (ECF No. 9.) On March 4, petitioner filed the present motion for equitable tolling. (ECF No. 14.) Respondent opposes the motion. (ECF No. 19.)
Petitioner seeks a pre-petition determination that he is entitled to an additional four months to file his federal petition based on the more than four-month period between the date he filed the motion for appointment of counsel and the date the court appointed counsel. Petitioner's argument is premised on the assumption that the statute of limitations was statutorily tolled during the pendency of petitioner's state habeas proceeding. Respondent objects to this premise and objects as well to any equitable tolling.
Petitioner's direct review proceedings were final on April 17, 2006, the date the United States Supreme Court denied certiorari. 28 U.S.C. § 2244(d)(1)(A); see Holland v. Florida, 560 U.S. 631, 635 (2010). On the next day, April 18, 2006, the one-year statute of limitations for filing a federal habeas corpus petition, created in 1996 by the Anti-terrorism and Effective Death Penalty Act (the "AEDPA"), commenced. See id. Absent tolling, petitioner's federal habeas corpus petition was due April 17, 2007.
AEDPA's statute of limitations may be tolled "for 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." 28 U.S.C. § 2244(d)(2). Petitioner's motion for equitable tolling assumes he is entitled to this statutory tolling from the day he filed his first state habeas petition on November 4, 2005, through the day the California Supreme Court denied him habeas relief on September 18, 2013. Based on this assumption, the statute of limitations for petitioner's federal habeas petition will expire on September 17, 2014. Respondent argues statutory tolling is inapplicable because petitioner's initial state habeas petition was only a "shell" petition.
Respondent parses the statutory tolling requirement to make three arguments: (1) the first state petition was not "properly filed;" (2) the first state petition was not an "application for postconviction or other collateral relief;" and (3) the first state petition was not "pending." None of respondent's arguments hold up under scrutiny.
Respondent asserts that the "properly filed" requirement includes compliance with the state's rules governing filings, including those prescribing the form of the document. According to respondent, the "form" of petitioner's initial habeas petition was improper because it did not comply with California rules that require a habeas petition to "articulate the legal theory and operative facts for each claim for relief." (ECF No. 19 at 24-25; see Cal. R. Ct. 8.384 & form MC-275 (copy provided at ECF No. 19-1).)
Id. The Court further explained, "the question whether an application is 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. at 9. The Court held that denial of the state petition on the grounds of a state procedural rule barring claims which had been raised on direct appeal, did not render the state petition improperly filed for purposes of section 2244(d)(2). Id. at 10-11.
Following Artuz, courts have held that an untimely state petition is not "properly filed," Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005); a second petition dismissed by the state court as successive was "properly filed," Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999); and a state court petition dismissed for failure to state a claim was "properly filed," Cross v. Sisto, 676 F.3d 1172, 1176-77 (9th Cir. 2012). Cross is particularly relevant to the situation in the present case. In Cross, the California Supreme Court denied the habeas petition with citations to case law indicating the denial was based on the petitioner's failure to "state fully and with particularity the facts on which relief is sought." 676 F.3d at 1176-77. The Court of Appeals held that while thepetition was "procedurally deficient under California law, it was not improperly filed within the meaning of §2244(d)(2)." Id. at 1177 (quoting Gaston v. Palmer, 417 F.3d 1030, 1039 (9th Cir. 2005)). Further, the court noted that the California Supreme Court's decision to allow the petitioner to amend his petition showed that the California Supreme Court did not consider that petition to have been untimely or improperly filed. Id. Other courts have also looked to how the state court treated a state petition to determine whether, under section 2244(d)(2), that petition was "properly filed." See Jenkins v. Superintendent, 705 F.3d 80, 87-88 (3rd Cir. 2013); Rice v. Bowen, 264 F.3d 698, 701 (7th Cir. 2001); Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001).
The California Supreme Court recently approved the filing of "shell" petitions, such as petitioner's first state habeas petition, for the purpose of tolling the federal statute of limitations. See In re Morgan, 50 Cal. 4th 932, 941-42 (2010); In re Jimenez, 50 Cal. 4th 951, 957-58 (2010).3 In Jimenez, the court considered a capital petitioner's filing of a one-issue state habeas corpus petition. State habeas counsel had been appointed for petitioner Jimenez in June 2007. In April 2008, the California Supreme Court denied Jimenez's appeal. In September 2008, Jimenez filed the single-issue state habeas corpus petition with the California Supreme Court. Jimenez asked the court to defer consideration of his petition until his counsel had an opportunity to investigate and prepare an amended petition. In granting the petitioner's request, the court reaffirmed its policy of allowing capital inmates 36 months after the appointment of counsel to file a state habeas petition. Id. at 955 () The court explained that implicit in this policy was a recognition of the enormous amount of work involved in preparing a capital habeas petition:
Before preparing the petition, counsel must consult with the petitioner and must review not only the trial record (here totaling more than 5,000 pages) but also the police reports and trial counsel's notes. In addition, habeas corpus counsel must investigate...
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