Reynolds v. Cambra, No. CV977048CBMAJW.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtMarshall
Citation136 F.Supp.2d 1071
Decision Date09 March 2001
Docket NumberNo. CV977048CBMAJW.
PartiesSean REYNOLDS, Plaintiff, v. Steven CAMBRA, Warden, et al., Defendant.
136 F.Supp.2d 1071
Sean REYNOLDS, Plaintiff,
v.
Steven CAMBRA, Warden, et al., Defendant.
No. CV977048CBMAJW.
United States District Court, C.D. California, Western Division.
March 9, 2001.

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COPYRIGHT MATERIAL OMITTED

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Sean Reynolds, San Luis Obispo, CA, pro se.

William T Harter, Margaret E Maxwell, CAAG - Office of Attorney General of California, Los Angeles, CA, for Steven Cambra, Jr., Atty. Gen., State of Cal., respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARSHALL, District Judge.


Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the entire record in this action, the attached Report and Recommendation of Magistrate Judge ("Report"), and the objections thereto. Good cause appearing, the Court concurs with and adopts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

WISTRICH, United States Magistrate Judge.

Background

On March 11, 1994, petitioner was convicted of two counts of robbery, one count of attempted robbery, and one count of assault with a deadly weapon. In addition, the jury found true allegations that petitioner

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personally used a firearm in the commission of the assault and that a principal was armed with a firearm during the robberies and the attempted robbery. [Motion to Dismiss, Ex. A]. Petitioner admitted that the had suffered one prior serious felony conviction and another conviction for which he had served a prison term. [Motion to Dismiss, Ex. A]. On May 11, 1994, petitioner was sentenced to state prison for a term of 18 years and 6 months. [Motion to Dismiss, Ex. A].

Petitioner appealed to the California Court of Appeal, which affirmed petitioner's petitioner's conviction and sentence on February 7, 1995. [Motion to Dismiss, Exs. B & C]. Petitioner then filed a petition for review in the California Supreme Court. [Motion to Dismiss, Ex. D]. The petition was denied on January 3, 1996. [Motion to Dismiss, Ex. D].

Petitioner filed this petition on August 26, 1997.1 The petition alleges that (1) petitioner was denied his right to have a jury decide the truth of the personal firearm use enhancement because the trial court failed to instruct the jury as to the elements of the enhancement and it was questionable whether petitioner's possession of the gun fell within the definition of the enhancement, and (2) petitioner was denied due process because the trial court did not instruct the jury on the lesser included offense of simple assault and exhibiting a firearm. [Petition at 6-7].

Statute of Limitation

Respondents filed a motion to dismiss the petition on the ground that it is barred by the one year period of limitation set forth in 28 U.S.C. § 2244(d). Petitioner filed an opposition to the motion, alleging that he is entitled to tolling of the limitation period because (a) he tried to file a prior federal petition on February 13, 1997 and (b) his personal property was taken from him by prison authorities. Both parties have filed supplemental briefs submitting evidence in support of their positions. Respondents' motion should be denied.

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996. Fuller v. Roe, 182 F.3d 699, 702 (9th Cir.1999) (per curiam). The AEDPA provides that

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 of 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

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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). Further, the AEDPA provides that

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)(2).

The record does not contain any facts suggesting the applicability of subsections (B) through (D). Pursuant to subsection (A), the one-year limitations period began to run on the date on which the judgment became final. 28 U.S.C. § 2244(d)(1)(A).

Petitioner's conviction became final for purposes of the AEDPA on April 3, 1996 — ninety days after the California Supreme Court denied his petition for review. Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir.1999); see also Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir.1997) (explaining that a decision is "final" when the defendant has exhausted state appellate remedies and either the Supreme Court of the United States has denied a petition for certiorari or the time for filing such a petition has expired), cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998), citing Allen v. Hardy, 478 U.S. 255, 258 n. 1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Where, as here, a petitioner's conviction became final prior to the enactment of the AEDPA, the one-year statute of limitation does not begin to run until the AEDPA's effective date of April 24, 1996. Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288-1289 (9th Cir.1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) & 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998), overruled on other grounds by, Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir.1998) (en banc), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). Accordingly, the limitation period for petitioner's federal petition began to run on April 24, 1996 and, absent any tolling, expired on April 24, 1997.2 Beeler, 128 F.3d at 1287. Petitioner did not file this petition until August 26, 1997 — four months after the limitation

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period expired. Thus, the petition is subject to dismissal unless petitioner is entitled to either statutory or equitable tolling.

Statutory tolling

As discussed, the limitation period does not run so long as a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). Petitioner does not allege that he had any state applications for relief pending after April 24, 1996. Petitioner, however, alleges that he "filed" a federal petition on February 13, 1997. No such petition was received by the Court. In addition, federal habeas petitions do not toll the limitation period pursuant to section 2244(d)(2). Jiminez v. Rice, 222 F.3d 1210, 1213-1214 (9th Cir.2000). Therefore, petitioner is not entitled to statutory tolling of the limitation period.

Equitable tolling

Petitioner alleges that the limitation period should be equitably tolled because extraordinary circumstances beyond his control made it impossible for him to file his petition on time. [Opposition at 1]. He points to two separate events that he believes entitle him to equitable tolling.

In order to be entitled to equitable tolling, petitioner must show that he was prevented from filing his petition on time by extraordinary circumstances beyond his control. Beeler, 128 F.3d at 1288-1289; Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616 (3rd Cir.1998); Henderson v. Johnson, 1 F.Supp.2d 650 (N.D.Tex.1998). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), citing Kelly, 163 F.3d at 541; Beeler, 128 F.3d at 1288-1289; see also Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y. 1998) ("Equitable tolling is warranted when some event effectively prohibits the petitioner from pursuing habeas, such as the misplacement of files, or being denied access to materials necessary to file a habeas petition.").

First, petitioner alleges that he was deprived of his personal property. [Opposition at 1]. Because petitioner is entitled to equitable tolling on the basis of his other allegations, it is unnecessary to address petitioner's loss of property. Nevertheless, the Court notes that in his inmate grievance related to the alleged deprivation of his property, petitioner did not complain that he was deprived of any legal papers necessary for the preparation of his habeas petition. Rather, he complained that his television set was damaged and that other items were "missing." [See Opposition, Ex. 1A-2A]. Indeed, as petitioner concedes, he was able to prepare his first habeas petition as early as October 15, 1996 (the date on which petitioner signed the petition itself, as opposed to the request to proceed in forma pauperis, which was signed on February 13, 1997), despite having been deprived of his personal property. [Opposition at 1]. Accordingly, this allegation does not entitle petitioner to equitable tolling.

Second, petitioner alleges that he "sent" a federal habeas petition to this Court on February 13, 1997 — prior to the expiration of the one-year limitation period. [Opposition at 1 & 1998 Reynolds Declaration at 1].3

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Based upon the evidence presented by both parties, the Court makes the...

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3 practice notes
  • U.S. v. Nelson, Crim. No. 89-20081-06-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 7, 2001
    ...one state appellate court have held to the contrary. See United States v. Shark, 158 F.Supp.2d 43, 64 (D.D.C.2001); Reynolds v. Cambra, 136 F.Supp.2d 1071, 1088 (C.D.Cal.2001); United States v. Hernandez, 137 F.Supp.2d 919, 928 (N.D.Ohio 2001); Darity v. United States, 124 F.Supp.2d 355, 35......
  • U.S. v. Clark, No. 99-50485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 26, 2001
    ...in the Ninth Circuit remain divided on whether Apprendi may be applied retroactively in other contexts. Compare Reynolds v. Cambra, 136 F.Supp.2d 1071 (C.D.Cal. 2001)(applying Apprendi retroactively to a writ petition brought pursuant to 28 U.S.C. § 2254) with Panoke v. United States, 2001 ......
  • McGuinness v. Pepe, No. Civ.A. 00-11546-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 21, 2001
    ...had left prison without leaving a forwarding address), appeal dismissed, 172 F.3d 864 (4th Cir.1999), with Reynolds v. Cambra, 136 F.Supp.2d 1071, 1077-78 (C.D.Cal. 2001) (holding that a petitioner who complied with all of the prison's mail procedures was not further required to send letter......
3 cases
  • U.S. v. Nelson, Crim. No. 89-20081-06-KHV.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 7, 2001
    ...one state appellate court have held to the contrary. See United States v. Shark, 158 F.Supp.2d 43, 64 (D.D.C.2001); Reynolds v. Cambra, 136 F.Supp.2d 1071, 1088 (C.D.Cal.2001); United States v. Hernandez, 137 F.Supp.2d 919, 928 (N.D.Ohio 2001); Darity v. United States, 124 F.Supp.2d 355, 35......
  • U.S. v. Clark, No. 99-50485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 26, 2001
    ...in the Ninth Circuit remain divided on whether Apprendi may be applied retroactively in other contexts. Compare Reynolds v. Cambra, 136 F.Supp.2d 1071 (C.D.Cal. 2001)(applying Apprendi retroactively to a writ petition brought pursuant to 28 U.S.C. § 2254) with Panoke v. United States, 2001 ......
  • McGuinness v. Pepe, No. Civ.A. 00-11546-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • May 21, 2001
    ...had left prison without leaving a forwarding address), appeal dismissed, 172 F.3d 864 (4th Cir.1999), with Reynolds v. Cambra, 136 F.Supp.2d 1071, 1077-78 (C.D.Cal. 2001) (holding that a petitioner who complied with all of the prison's mail procedures was not further required to send letter......

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