Mil v. Frauenheim, Case No. 1:16-cv-00264-LJO-SAB-HC

• Decision Date: 05 August 2016
• Docket Number: Case No. 1:16-cv-00264-LJO-SAB-HC
• Court: U.S. District Court — Eastern District of California
• Parties: EDUARDO MIL, JR., Petitioner, v. SCOTT FRAUENHEIM, Respondent.

EDUARDO MIL, JR., Petitioner, v. SCOTT FRAUENHEIM, Respondent.

Case No. 1:16-cv-00264-LJO-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

August 5, 2016

FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION FOR EQUITABLE TOLLING, GRANT RESPONDENT'S MOTION TO DISMISS, AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS

(ECF Nos. 2, 14)

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

I.BACKGROUND

Petitioner was convicted by a jury in Kern County Superior Court of first-degree murder. The jury found true the special circumstances allegation that the murder was committed during a robbery and burglary. Petitioner was sentenced to an imprisonment term of life without the possibility of parole plus two years. (LD¹ 1, 2). On June 17, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). On January 23, 2012, the California Supreme Court reversed the Court of Appeal's judgment to the extent it affirmed the jury's true finding on the special circumstances of murder in the commission of a robbery andburglary and the sentence of life without the possibility of parole. The case was remanded for resentencing or retrial on the issue of the special circumstances. People v. Mil, 53 Cal. 4th 400, 419-20 (2012). On July 27, 2012, Petitioner was resentenced to an imprisonment term of twenty-five years to life plus two years. (LD 6). The resentencing was not appealed.

On April 2, 2013,² Petitioner filed a state petition for writ of habeas corpus in the Kern County Superior Court, which denied the petition on July 24, 2013. (LDs 7, 8). On August 15, 2013, Petitioner filed a state habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition on October 24, 2013. (LDs 9, 10). On September 14, 2013, Petitioner filed a federal petition for writ of habeas corpus in this Court, which dismissed the petition for nonexhaustion on February 19, 2014. (LDs 13, 16). On February 10, 2016, Petitioner filed a state habeas petition in the California Supreme Court, which summarily denied the petition on April 27, 2016.³

On February 13, 2016, Petitioner filed the instant federal petition for writ of habeas corpus along with a motion for equitable tolling. (ECF Nos. 1, 2). On April 29, 2016, Respondent filed a motion to dismiss. (ECF No. 14).

II.DISCUSSION

A. Statute of Limitation

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 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filedafter the enactment of the AEDPA and is therefore governed by its provisions. 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). Section 2244(d) 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.

28 U.S.C. § 2244(d).

In most cases, the limitation period begins running on the date that the petitioner's direct review became final or the expiration of the time for seeking such review. Here, Petitioner was resentenced on July 26, 2012, and did not appeal. Therefore, the judgment became final when Petitioner's time for seeking review expired on September 24, 2012, sixty days after Petitioner was resentenced. See Cal. R. Ct. 8.308. The one-year limitation period commenced running the following day, September 25, 2012, and absent tolling, was set to expire on September 24, 2013. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)).

B. Statutory Tolling

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 countedtoward" the one-year limitation period. 28 U.S.C. § 2244(d)(2). On April 2, 2013, Petitioner filed a state petition for writ of habeas corpus in the Kern County Superior Court, which denied the petition on July 24, 2013. (LDs 7, 8). On August 15, 2013, Petitioner filed a state habeas petition in the California Court of Appeal, Fifth Appellate District, which denied the petition on October 24, 2013. (LDs 9, 10). There is nothing in the record that suggests these two state habeas petition were not properly filed, and Respondent makes no such argument. Thus, Petitioner is entitled to statutory tolling for the period these two state habeas petition were pending and the interval between the Kern County Superior Court's adverse decision and when the petition was filed in the California Court of Appeal. See Evans v. Chavis, 546 U.S. 189, 193 (2006).

While his state habeas petition was pending in the California Court of Appeal, Petitioner also filed a federal habeas petition in this Court on September 14, 2013. (LD 13). This Court dismissed Petitioner's federal habeas petition on February 19, 2014 for failure to exhaust state remedies. (LD 16). However, the limitation period is not tolled during the pendency of a federal habeas petition. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

Petitioner did not file a state habeas petition in the California Supreme Court until February 10, 2016, which is 839 days after the California Court of Appeal denied habeas relief. Given that a habeas petition that is untimely under state law is not "properly filed," Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), "none of the time before or during the state court's consideration of an untimely petition is tolled for purposes of AEDPA's limitations period," Curiel v. Miller, --- F.3d ----, 2016 WL 394172, at *3 (9th Cir. July 25, 2016) (en banc) (citing Campbell v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010)). "[I]f a California court dismisses a habeas petition without comment . . . a federal court 'must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.'" Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (quoting Chavis, 546 U.S. at 197-98). In the instant case, the California Supreme Court summarily denied Petitioner's state habeas petition without comment. Thus, the Court must examine the delay and determine whether the petition was timely under state law.

/// California courts apply a general "reasonableness" standard to determine whether a state habeas petition is timely. Carey v. Saffold, 536 U.S. 214, 222 (2002). Because "California courts had not provided authoritative guidance on this issue," the Supreme Court in Chavis "made its own conjecture . . . 'that California's "reasonable time" standard would not lead to filing delays substantially longer than' between 30 and 60 days." Robinson, 795 F.3d at 929 (quoting Chavis, 546 U.S. at 199). However, if a petitioner demonstrates good cause, California courts allow a longer delay. Robinson, 795 F.3d at 929 (citing In re Robbins, 18 Cal. 4th 770, 780 (1998)).

As explanation for the substantial 839-day delay, Petitioner states that he did not receive notice of the California Court of Appeal's October 24, 2013 denial of his habeas petition until November 10, 2015. (ECF No. 2 at 2).⁴ Petitioner relied on the assistance of a fellow inmate to prepare his state habeas petition filed in the California Court of Appeal in August 2013. Petitioner alleges that after six or seven months passed without a response from the court, Petitioner raised his concerns to the inmate who had assisted with his petition. The inmate informed Petitioner that it was a normal delay, and other inmates agreed with that assessment. (Id. at 1). Around Christmas 2014, Petitioner again raised concerns to the inmate, who repeated that the state court's delay was normal. However, to address Petitioner's concerns, the inmate wrote a letter to the court. As more months passed by with no response from the state court, Petitioner again raised his concerns to the inmate, who repeated that delays were to be expected. A few months thereafter, Petitioner approached another inmate, Mr. Jose Carlos Rodriguez ("Rodriguez"), with his concerns about the state court's delay. (Id. at 2). Rodriguez prepared a Notice and Request for Ruling, and Petitioner mailed it to the California Court of Appeal in October 2015. (Id. at 2, 5). On November 10, 2015, Petitioner received an envelope from the California Court of Appeal that contained a copy of the order denying his petition on October 24, 2013. (Id. at 2, 6).

The 839-day delay in the instant case far exceeds the "30 to 60 day benchmark" of the reasonable time standard. Robinson, 795 F.3d at 929. Thus, only if Petitioner can demonstrate good cause will Petitioner's habeas petition filed in the ...