Sperling v. White

Citation30 F.Supp.2d 1246
Decision Date11 December 1998
Docket NumberNo. CV 98-3424-CAS(E).,CV 98-3424-CAS(E).
PartiesNels SPERLING, Petitioner, v. Theo WHITE, Warden, et al., Respondents.
CourtU.S. District Court — Central District of California

Mel Sperling, pro se.

Peggy J. Bradford, Deputy Attorney General, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

SNYDER, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondents.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

EICK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition") on May 4, 1998. Respondents filed a Motion for Summary Dismissal of Petition on June 26, 1998 ("Motion"), contending the Petition is barred by 28 U.S.C. section 2244(d), the applicable statute of limitations. Petitioner filed a response to the Motion on July 17, 1998. Petitioner filed a Traverse on September 15, 1998.

BACKGROUND

On November 2, 1987, Petitioner pled guilty to numerous state charges. Thereafter, Petitioner filed two petitions for writs of habeas corpus with the Los Angeles County Superior Court. The Superior Court denied the petitions on February 7, 1996 and February 28, 1996.

In March 1996, Petitioner filed two petitions for writs of habeas corpus with the California Court of Appeal. The California Court of Appeal denied the petitions on June 7, 1996.

On July 11, 1996, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. The California Supreme Court denied the petition on September 25, 1996.

On August 15, 1996, Petitioner filed his second petition for writ of habeas corpus with the California Supreme Court. On October 30, 1996, the California Supreme Court denied the petition.

On December 9, 1996, Petitioner filed a petition for writ of habeas corpus in federal court. On October 20, 1997, this Court denied and dismissed the petition without prejudice for failure to exhaust available state remedies.1

On November 17, 1997, Petitioner filed his third petition for writ of habeas corpus with the California Supreme Court. The California Supreme Court denied the petition on March 25, 1998, citing In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949), In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), and In re Miller, 17 Cal.2d 734, 735, 112 P.2d 10 (1941).

DISCUSSION2
A. The Issue Presented

Petitioner's convictions became final in 1987. However, the Ninth Circuit has determined that the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("the Act" or "the AEDPA") "did not begin to run against any state prisoner prior to the statute's [April 24, 1996] date of enactment." Calderon v. United States Dist. Ct., 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998). Thus, absent tolling, Petitioner had one year (365 days) from April 24, 1996,3 in which to file a petition for writ of habeas corpus in federal court. See 28 U.S.C. § 2244(d)(1) & (2) ("section 2244").

A total of 739 days elapsed between April 24, 1996, and May 4, 1998, the date Petitioner filed the present Petition. Four of Petitioner's habeas petitions filed with the California state courts tolled the statute of limitations for a total of 285 days.4 See 28 U.S.C. § 2244(d)(2).5 Accordingly, 454 days remain untolled by state post-conviction proceedings, or 89 days more than the 365 days permitted by the Act.

Petitioner had a petition pending in federal court for a total of 316 days. Thus, if section 2244(d)(2) tolls limitations during the pendency of federal habeas petitions, the present Petition would be timely; if section 2244(d)(2) does not toll limitations during the pendency of federal habeas petitions, the present Petition would be untimely.

Therefore, this Court must determine whether the AEDPA contemplates application of section 2244(d)(2) to collateral proceedings pending in federal court. At the core of this issue is the compass of section 2244(d)(2)'s phrase "a properly filed application for State post-conviction or other collateral review." Respondents argue the phrase encompasses only applications pending in state court. Petitioner conceivably would argue the phrase also encompasses non-state applications, including federal habeas petitions.

In interpreting a statute, the Court "`look[s] first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress'. Then, if the language of the statute is unclear," the Court may look to the traditional canons of statutory interpretation and to the statute's legislative history. Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir.1996)(quoting Alarcon v. Keller Indus. Inc., 27 F.3d 386, 389 (9th Cir. 1994)); see Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).

B. The Language of 28 U.S.C. Section 2244(d)

"(d)(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 (emphasis added).

C. Plain Reading of the Statute

"[T]he meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); see United States Nat'l Bank v. Independent Ins Agents of America, 508 U.S. 439, 454, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)("[a] statute's plain meaning must be enforced"); Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)("when a statute speaks with clarity to an issue[,] judicial inquiry ... is finished").

In determining whether a statute is plain, the "first criterion in the interpretive hierarchy" is a "natural reading" of the statutory language. United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 927, 137 L.Ed.2d 107 (1997); see Rake v. Wade, 508 U.S. 464, 473, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993); Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476-77, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992); Patterson v. Shumate, 504 U.S. 753, 757-58, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); Ardestani v. I.N.S., 502 U.S. 129, 135, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991); United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Interstate Commerce Comm'n v. Texas, 479 U.S. 450, 456-57, 107 S.Ct. 787, 93 L.Ed.2d 809 (1987). When the Court can envision more than one "natural reading" of a statute, the Court must determine the "more natural reading." Interstate Commerce Comm'n v. Texas, 479 U.S. at 456-57, 107 S.Ct. 787.

A "`cardinal principle of statutory construction ... [is] to give effect, if possible, to every clause and word of a statute.'" Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1166, 137 L.Ed.2d 281 (1997)(quoting United States v. Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 99 L.Ed. 615 (1955)); see Walters v. Metropolitan Educ. Enter., 519 U.S. 202, 117 S.Ct. 660, 664, 136 L.Ed.2d 644 (1997)("Statutes must be interpreted, if possible, to give each word some operative effect."); Gade v. National Solid Wastes Mangt. Ass'n, 505 U.S. 88, 100, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893 (1937); Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883).

"[S]tatutory language must always be read in its proper context. `In ascertaining the plain meaning of a statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'" McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991)(quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988)); see Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (19...

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