Lewis v. Mitchell

• Decision Date: 06 November 2001
• Docket Number: No. CV 01-4943-NM(RC).,CV 01-4943-NM(RC).
• Court: U.S. District Court — Central District of California
• Parties: Kandee LEWIS, aka Kandee Denise Lewis, aka Kandee Gilbert-Lewis, Petitioner, v. Gwendolyn MITCHELL, Respondent.

173 F.Supp.2d 1057

Kandee LEWIS, aka Kandee Denise Lewis, aka Kandee Gilbert-Lewis, Petitioner, v. Gwendolyn MITCHELL, Respondent.

No. CV 01-4943-NM(RC).

United States District Court, C.D. California.

November 6, 2001.

Kandee Lewis, Chowchilla Central California Womens' Facility, Chowchilla, CA, pro se.

Marc A. Kohn, Deputy Attorney General, Los Angeles, CA, for respondent.

MEMORANDUM DECISION AND ORDER

CHAPMAN, United States Magistrate Judge.

On April 26, 2001,¹ petitioner Kandee Lewis, aka Kandee Denise Lewis, aka Kandee Gilbert-Lewis, filed the pending application for habeas corpus relief challenging her conviction and sentence in Los Angeles County Superior Court case no. BA164658.² The petition raises the following claims: Grounds One and Three — Petitioner's sentence violates her constitutional rights under the 5th and 14th amendments; Ground Two — "Petitioner's plea agreement was illegal and in contravention to [sic] her constitutional rights under the 5th and 14th amendments"; Ground Four — Petitioner's constitutional right to effective assistance of counsel under the 6th amendment was violated;³ Ground Five — Application of the "Three Strikes Law" to convictions incurred in 1994 violates due process and the prohibition against ex post facto laws; and Ground Six — Petitioner's sentencing violates the 8th Amendment proscription against cruel and unusual punishment.

On August 3, 2001, respondent filed a motion to dismiss the petition, arguing it is untimely and petitioner has failed to exhaust her state court remedies regarding Ground 2. The petitioner filed an opposition to the motion to dismiss on September 13, 2001, and a further reply on October 17, 2001. The respondent filed a reply to petitioner's opposition on October 19, 2001.

I

On November 18, 1998, in Los Angeles County Superior Court case no. BA164658, petitioner pleaded guilty to, and was convicted of, three counts of fraudulent use of an access card in violation of California Penal Code ("P.C.") § 484g and one count of forging a name on a credit card in violation of P.C. § 484f(b). Motion to Dismiss ("Motion"), Exh. A. On the same date, petitioner was sentenced to six years on one count, one year and four months on each of the other counts, and one year for a prior prison term within the meaning of P.C. § 667.5(b), for a total term of 11 years in state prison. Id. The petitioner did not appeal her convictions. Petition at 3-4.

On March 12, 1999,⁴ petitioner filed a motion for modification of sentence in the Los Angeles County Superior Court, arguing the evidence against her was false and her sentence was disproportionate to the crime she committed. The Superior Court denied this motion on March 31, 1999. Opposition, Exh. E.

On December 7, 1999, petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which denied the petition on March 1, 2000. Motion, Exh B. On March 15, 2000, petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on March 21, 2000. Motion, Exh. C. Finally, on April 22, 2000, petitioner filed an application for habeas corpus relief in the California Supreme Court, which denied the application on August 9, 2000. Motion, Exh. D.

II

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") worked substantial changes to the law of habeas corpus. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.1997), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). Of specific importance to the petitioner's claims are the revisions made to 28 U.S.C. § 2244(d), which now provides:

(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 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.

The petitioner did not appeal her conviction to the California Court of Appeal, and the conviction became final 60 days after petitioner was sentenced on November 18, 1998. See California Rules of Court, Rule 31(d). Thus, for petitioner, the statute of limitations under the AEDPA began to run on January 18, 1999, and expired on January 17, 2000. The instant action was not filed until more than one year after the statute of limitations had run. However, this Court must consider whether the statute of limitations was tolled while petitioner's applications for collateral relief were pending in the California courts.

Here, petitioner filed a motion to modify her sentence in the Los Angeles County Superior Court on March 12, 1999, and that motion was denied on March 31, 1999. This motion for modification of sentence is a "properly filed application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2) for several reasons: First, petitioner's motion was accepted for filing and denied on the merits by the Superior Court. Cf. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). Second, Section 2244(d)(2) "applies to all types of state collateral review available after a conviction and not just to those denominated `post-conviction' in the parlance of a particular jurisdiction." Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2127, 150 L.Ed.2d 251 (2001); Tillema v. Long, 253 F.3d 494, 499-502 (9th Cir.2001). Third the motion for modification of sentence is an application challenging the pertinent state court judgment. See Tillema, 253 F.3d at 502 (holding motion to vacate sentence challenging erroneous information in presentence report is "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment" and also stating "AEDPA's period of limitation is tolled during the pendency of a state application challenging the pertinent judgment, even if the particular application does not include a claim later asserted in the federal habeas petition").

As of March 12, 1999, petitioner had "used" 53 of her allotted 365 days, and had 312 days left on the statute of limitations period. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000). In Nino, the Ninth Circuit held that "the statute of limitations is tolled from the time the first state [post-conviction] petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Id. (footnotes omitted). This holding, however, contemplates that the state inmate first files a petition in the state's superior court, then proceeds to the California Court of Appeal, and concludes her state review in the California Supreme Court. Id. at 1006 n. 2 & n. 3. Here, the petitioner first filed a request for modification of sentence in the Los Angeles County Superior Court and then also filed a habeas corpus petition in the Los Angeles County Superior Court — a situation not addressed by Nino. Id. at 1006-07 n. 4. The statute of limitations cannot be tolled for the period of time between the Superior Court's denial of the petitioner's motion for modification of sentence and the filing of her habeas corpus petition because no petition was "pending" during that interval. See, e.g., Rowe v. LeMaster, 225 F.3d 1173, 1175 (10th Cir. 2000) (AEDPA's limitation period not tolled during time between successive state petitions; nor could second state petition relate back to earlier filed petition when "the first state habeas proceeding has been reduced to a final, unappealed judgment."); Villegas v. Johnson, 184 F.3d 467, 472-73 (5th Cir.1999) (holding properly filed second or successive state habeas petition may toll AEDPA's statute of limitations but noting "any lapse of time before a state application is properly filed will be counted against the one-year limitation period"). Thus, the statute of limitations ran for 250 days, from April 1, 1999, through December 6, 1999, and petitioner had 62 days remaining on the limitations period when she filed her habeas corpus petition in the Los Angeles County Superior Court on December 7, 1999.

Under Nino, the statute of limitations was tolled from December 7, 1999, until the California Supreme Court denied petitioner's habeas corpus application. Nino, 183 F.3d at 1006. Under Rule 24 of the California Rules of Court, that denial was not final until thirty days after the date of denial (August 9, 2000). Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir.2001) (per curiam). Therefore, the limitations period was tolled until September 8, 2000, and petitioner had 62 days thereafter in which to file a federal habeas petition. However, the pending petition was not filed until April 26, 2001 — well beyond that time; thus, it is untimely.

Nevertheless, this Court must consider whether petitioner has raised any grounds to equitably toll the AEDPA's statute of limitations. Equitable tolling is...