Moody v. Dexter

• Decision Date: 28 October 2009
• Docket Number: Case No. CV 08-4530-ODW (RC).
• Citation: 667 F.Supp.2d 1167
• Court: U.S. District Court — Central District of California
• Parties: Jimmy Nathan MOODY, Petitioner, v. Debra DEXTER, Warden, California Dept. of Corrections, Ironwood State Prison, Respondent.

667 F.Supp.2d 1167

Jimmy Nathan MOODY, Petitioner, v. Debra DEXTER, Warden, California Dept. of Corrections, Ironwood State Prison, Respondent.

Case No. CV 08-4530-ODW (RC).

United States District Court, C.D. California.

October 28, 2009.

Franklin Peters, Jr., Franklin Peters Law Offices, Los Angeles, CA, for Petitioner.

Kenneth C. Byrne, Xiomara Costello, CAAG—Office of Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

OTIS D. WRIGHT II, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.

IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered dismissing the petition and the action as untimely.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.

JUDGMENT

Pursuant to the Order of the Court adopting the findings, conclusions, and recommendations of United States Magistrate Judge Rosalyn M. Chapman.

IT IS ADJUDGED that the petition for writ of habeas corpus and the action are dismissed as untimely.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Otis D. Wright II, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

I

On February 2, 1990, in Los Angeles County Superior Court case no. A981539, a jury convicted petitioner Jimmy Nathan Moody of one count of first degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1), five counts of attempted murder in violation of P.C. §§ 664/187(a) (counts 2-4, 7 and 8), and two counts of shooting at an inhabited dwelling in violation of P.C. § 246 (counts 5-6), and, as to counts 1 through 4, 7 and 8, the jury found petitioner personally used a firearm in the commission of the offenses within the meaning of P.C. §§ 1203.06(a)(1) and/or 12022.5(a) and inflicted great bodily injury on one of the victims in violation of P.C. § 12022.7. Clerk's Transcript ("CT") 309-19; Petition, Exh. A.¹ On April 24, 1990, the petitioner was sentenced to 31 years to life in state prison. CT 341-44.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 345, which affirmed the judgment in an unpublished opinion filed October 30, 1992. Petition, Exh. A. On December 9, 1992, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which denied the petition on January 27, 1998. See Petition, Exhs. B-C.

On January 16, 1996, petitioner, again proceeding through counsel, filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which denied the petition on December 24, 1998, citing In re Clark, 5 Cal.4th 750, 765, 21 Cal. Rptr.2d 509, 855 P.2d 729 (1993), and stating that "petitioner provides no justification for the six years delay between his conviction and the filing of this [habeas corpus petition]. . . ." Petition, Exhs. D-E.

On March 27, 2001, petitioner, again proceeding through counsel, filed a habeas corpus petition in the California Court of Appeal, which denied the petition on April 12, 2001. Petition, Exhs. F-G. On May 15, 2001, petitioner, proceeding through counsel, filed a habeas corpus petition in the California Supreme Court, which denied the petition on November 28, 2001, citing In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), and stating the petition was denied on the merits and for lack of diligence. Petition, Exhs. H-I.

On September 20, 2006, petitioner, proceeding through counsel, filed another habeas corpus petition in the Los Angeles County Superior Court, which denied the petition on March 15, 2007, finding the petition was both untimely and without merit. Petition, Exhs. J-K. Most recently, on July 18, 2007, petitioner, still proceeding through counsel, filed a habeas corpus petition in the California Supreme Court, which denied the petition on February 13, 2008. Petition, Exhs. L-M.

II

On July 10, 2008, petitioner, proceeding through counsel, filed the pending habeas corpus petition under 28 U.S.C. § 2254, and on September 12, 2008, respondent filed a motion to dismiss the petition, arguing it is untimely. On January 5, 2009, respondent filed an amended supplemental memorandum of points and authorities, and on February 19, 2009, petitioner filed his opposition to the motion to dismiss.

The pending habeas corpus petition raises the following claims:

Ground One—"The prosecutor presented the testimony of witness Moses Tillett without a showing of due diligence. This violated the 5th and 14th Amends. to the U.S. Constitution (Due Process) and violated the 6th Amend. right to confrontation"; and

Ground Two—"There is newly discovered evidence that someone other than Petitioner committed the crime(s)." Petition at 5.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a one-year period of limitations for federal habeas petitions filed by state prisoners," Bryant v. Arizona Attorney Gen., 499 F.3d 1056, 1059 (9th Cir. 2007), as follows:

(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. . . .

(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).

The AEDPA's statute of limitations, which was effective April 24, 1996, did not begin to run until its enactment. Allen v. Siebert, 552 U.S. 3, 4, 128 S.Ct. 2, 3, 169 L.Ed.2d 329 (2007) (per curiam); Carey v. Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134, 2137, 153 L.Ed.2d 260 (2002). Thus, an inmate whose conviction became final before the AEDPA's effective date, such as petitioner, had one year from the AEDPA's enactment, or until April 24, 1997, to file a federal habeas corpus petition. Bryant, 499 F.3d at 1059; Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006), cert. denied sub nom., Belleque v. Kephart, 549 U.S. 1317, 127 S.Ct. 1880, 167 L.Ed.2d 386 (2007). The instant action, however, was not filed until July 10, 2008-more than eleven years after the statute of limitations ran.

This Court must now consider whether the statute of limitations was statutorily tolled while petitioner's several applications for collateral relief were pending in the California courts. The petitioner's first habeas corpus petition was filed in the Los Angeles County Superior Court on January 16, 1996, and was denied with a citation to In re Clark and a finding that there was "no justification for the six years delay between [petitioner's] conviction and the filing" of the petition; thus, this habeas petition was not properly filed and it did not toll the limitations period. See, e.g., Siebert, 128 S.Ct. at 4-5 ("Because Siebert's petition for state post-conviction relief was rejected as untimely by the Alabama courts, it was not `properly filed' under § 2244(d)(2). Accordingly, he was not entitled to tolling of AEDPA's 1-year statute of limitations."); Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005) ("Because the state court rejected petitioner's . . . petition as untimely, it was not `properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2)."); Thorson v. Palmer, 479 F.3d 643, 644 (9th Cir.2007) ("[B]ecause the California Supreme Court denied Thorson's state habeas petition as untimely, Thorson was not entitled to tolling while his untimely petition was pending in state court."). Moreover, since petitioner's other habeas corpus petitions in the California courts were not filed until after the statute of limitations had expired, they neither tolled nor revived the limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001), cert. denied, 538 U.S. 949, 123 S.Ct. 1627, 155 L.Ed.2d 492 (2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000). Thus, petitioner is not entitled to statutory tolling of the limitations period, and the statute of limitations expired on April 24, 1997.

Next, this Court must determine whether the limitations period should be equitably tolled. A habeas petitioner is entitled to equitable tolling "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation and internal quotation marks omitted); Espinoza-Matthews v. People of the State of Cal., 432 F.3d 1021, 1026 (9th Cir.2005). The petitioner bears the burden of proving: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418, 125 S.Ct. at 1814; Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009). Additionally, "the prisoner must show that the `extraordinary circumstances' were the but-for and proximate causes of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (citations and internal quotation marks...