Opinion
Case No. 05cv1127 H (PCL).
February 17, 2006
REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS
INTRODUCTION
Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Pet."). Respondent has filed a motion to dismiss the Petition as untimely. This Court has reviewed the Petition, Respondent's Motion to Dismiss, Respondent's Lodgments, and Petitioner's Opposition. For the reasons set forth below, this Court recommends that Respondent's Motion to Dismiss be GRANTED and the Petition dismissed as untimely.
BACKGROUND
On July 13, 1995, Petitioner was found guilty by a jury in San Diego County Superior Court case number SCD-110491, of one count of forcible oral copulation accomplished by kidnaping in violation of California Penal Code §§ 288a(c) and 667.61(d)(2), one count of kidnaping for sexual purposes in violation of Penal Code §§ 207 and 208(d), two counts of assault with attempt to commit rape or oral copulation in violation of Penal Code § 220, and two counts of sexual battery by restraint in violation of Penal Code § 243.4(a). (Lodg. 1 of 1 and 1 of 2) On July 14, 1995, the court found true two prior serious felony convictions and that those same priors constituted strikes under the three strikes law. (Lodg. 2) On August 31, 1995, Petitioner was sentenced to a prison term of 110 years to life. (Lodg. 3 of 1 and 3 of 2)
Hereinafter all references to the Penal Code will be to the California Penal Code.
Petitioner filed a direct appeal of his conviction with the Court of Appeal, Fourth Appellate District, Division One. On May 23, 1997, in a published opinion, the conviction was reversed because the trial court improperly and prejudicially admitted police computer data regarding sex crimes into Petitioner's trial. (Lodg. 4) On August 27, 1997 the California Supreme Court denied Respondent's petition for review. (Lodg. 5)
Petitioner was subsequently retried on the same charges. On October 5, 1998, the jury convicted Petitioner for the same crimes described above. (Lodg. 6) On October 6, 1998, the court again found true two prior serious felony convictions and that those same priors constituted strikes under the three strikes law. (Lodg. 7) On November 20, 1998, Petitioner was again sentenced to a prison term of 110 years to life. (Lodg. 8 of 1 and 8 of 2)
Petitioner filed a direct appeal of his conviction with the Court of Appeal, Fourth Appellate District, Division One. On January 7, 2000, in an unpublished opinion, the appellate court affirmed the conviction. (Lodg. 9) On February 7, 2000, Petitioner sought review of the appellate court's decision in the California Supreme Court. (Lodg. 10) Petitioner claimed that: 1) the trial court erred by using the three strikes law to triple the 25-year minimum of an indeterminate life sentence mandated by the one strike law; 2) the trial court erred by admitting into evidence his 1981 statement about two unsubstantiated and unreported Florida sex offenses; and 3) the trial court erred in refusing to sever the Jane D. charges from the Monika B. charges. (Id. at 5-40) On March 22, 2000, the California Supreme Court denied the petition for review. (Lodg. 11)
On May 31, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus with this Court. (Doc. 1) In his Petition, Petitioner sets forth ten claims: 1) the trial court erred by not severing the criminal charges and the trial of Jane D. from Monika B.; 2) the trial court erred in allowing Petitioner's confession to prior similar crimes; 3) the trial court erred in failing to instruct the jury on the presumption of innocence; 4) the trial court erred by allowing Petitioner's confession to prior similar crimes to be admitted into evidence without a jury finding of guilt on the prior crimes; 5) Petitioner's trial counsel was ineffective for failing to object to consolidating the cases of two different victims, and by failing to object to the admission of Petitioner's confession to the prior crimes; 6) the trial court erred by not instructing the jury on the elements of the cross admissibility of evidence; 7) the trial court erred by using Petitioner's prior convictions as strikes against him at sentencing because at the time he pled guilty to the prior crimes he was not advised that the plea would be used against him in a future case; 8) the trial court erred by imposing an enhanced sentence under California's three strike law; 9) Petitioner's trial counsel was ineffective for failing to object to the admission of his prior convictions at trial; and 10) Petitioner's sentence under California's three strikes law was an illegal ex post facto application of the law. (Pet. at 5-22) On October 12, 2005, Respondent filed a motion to dismiss the petition, a memorandum of points and authorities ("Mot"), and lodged portions of the state court record ("Lodg."). (Doc. Nos. 14-16) On December 19, 2005, Petitioner filed an opposition to the motion and a memorandum of points and authorities ("Opp'n"). (Doc. No. 17)
Petitioner's Opposition was actually entitled "Denial and Exception to the Return and Memorandum of Points and Authorities in Support Thereof."
STATUTE OF LIMITATIONS
Respondent argues that the Petition must be dismissed because it was filed after the statute of limitations expired. Under the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner seeking federal habeas review must file his federal petition within one year after his state conviction becomes "final." 28 U.S.C. § 2244(d)(1)(A). The one year limitation period begins running on the date the state "judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. "Direct review" includes the ninety-day period within which a petitioner can file a petition for writ of certiorari to the United States Supreme Court, regardless of whether the petitioner actually seeks such review.Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Here, Petitioner's direct review ended when the California Supreme Court denied his petition for review on March 22, 2000. Petitioner's judgment became final ninety days thereafter, June 20, 2000. Petitioner then had 365 days from this date, or until June 20, 2001, to file his federal petition for writ of habeas corpus. Petitioner did not file his Petition until May 31, 2005. Thus, the Petition was filed almost four years after the statute of limitations had expired.
Petitioner argues that the statute of limitations did not begin to run against him until he discovered the reversible errors committed at trial by the trial court and his own counsel. (Opp'n at 3) Under 28 U.S.C. § 2244 (d)(1)(D), the statute of limitations begins to run from 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)(D).
Here, Petitioner does not allege any new facts he discovered after the limitations period ended. Petitioner's claims are solely based on alleged errors that occurred during trial committed by the trial court and his attorney. The factual basis of each of Petitioner's claims was discoverable by Petitioner within the limitations period. Thus, Petitioner's argument fails.
Statutory tolling does not apply to bring the Petition within the limitations period. The statute of limitations may be statutorily tolled while a "properly filed" collateral petition is "pending" in state courts. See 28 U.S.C. § 2244(d)(2). Here, however, Petitioner did not file any petitions for collateral review of his conviction in state court. Thus, the statute of limitations is not subject to statutory tolling.
Accordingly, the Petition is untimely under the AEDPA unless the doctrine of equitable tolling applies to extend the filing deadline in this case.
1. Equitable Tolling
Petitioner concedes that his Petition was untimely filed but nonetheless claims that he is entitled to equitable tolling to bring the Petition within the limitations period. (Opp'n at 3) Specifically, Petitioner contends that he is basically illiterate, functioning at a fourth grade level, and is without knowledge of the law. Petitioner also claims that he is taking medication for his mental health that effects his ability to concentrate causing him to become easily distressed. (Opp'n at 2-3) Despite these restrictions, Petitioner contends that he was diligent in pursuing his claims. (Id. at 3) Respondent argues that Petitioner was not diligent, and neither ignorance of the law nor taking medication constitutes extraordinary circumstances to excuse Petitioner's late filing. (Mem. at 6-7)
The one-year statute of limitations may be subject to equitable tolling when "`extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). "The extraordinary circumstances must be the cause of the untimeliness." Laws v. A.A. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003). Grounds for equitable tolling are highly fact-dependent and Petitioner bears the burden of showing that equitable tolling is appropriate.Id; Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). However, equitable tolling is justified in few cases. Laws, 351 F.3d at 922. If a petitioner's own lack of diligence is the reason for the untimely filing, he is not entitled to equitable tolling. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999);Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001).
Moreover, the Ninth Circuit has excluded illiteracy as an objective external or extraordinary factor warranting application of equitable tolling. See Hughes v. Idaho State Bd. Of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (concluding that a pro se petitioner's illiteracy was not sufficient to meet the standard of an objective, external factor amounting to "cause" for purposes of avoiding procedural default of habeas claims). Other circuits have also found illiteracy, ignorance of the law, and pro se status insufficient to justify equitable tolling.See Marsh v. Soares, 223 F.3d 1217, 1221 (10th Cir. 2000) ("ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing."); Felder v. Johnson, 204 F.3d 168, 172-73 fn. 10 (5th Cir. 2000) (mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling of AEPDA's limitation period);Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (stating that neither a plaintiff's unfamiliarity with the legal process, due to illiteracy or any other reason, nor his lack of representation merits equitable tolling); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (equitable tolling not justified by fact that petitioner simply did not know about AEDPA time limitation).
Here, Petitioner's limited education and lack of knowledge in the law are not extraordinary circumstances to warrant equitable tolling. Even if Petitioner was diligent in pursuing his claims, Petitioner fails to allege any affirmative steps he took to keep informed as to the status of his legal proceedings or his legal rights to pursue his federal claims. If he had, he would not now be facing a time bar. Therefore, Petitioner's argument is unpersuasive.
Petitioner also claims that he is entitled to equitable tolling due to the effects of the medication he is taking for his mental health. "[M]ental incompetency justifies equitable tolling" if "a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline." Laws v. A.A. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). A habeas petitioner seeking equitable tolling "must show that the `extraordinary circumstances' [alleged] were the but-for and proximate cause of his untimeliness." Allen v. Lewis, 255 F.3d 798, 800-01 (9th Cir. 2001). A habeas petitioner need only set forth allegations "in a sworn pleading, against which the state has offered no evidence at all, that he was incompetent in the years when his petitions should have been filed." Laws, 351 F.3d at 923. Once a petitioner asserts that his mental illness is the but-for cause of his untimely filing, the district court must develop the factual record concerning the relevant time period during which the limitations clock was running to determine whether petitioner is entitled to equitable tolling. Laws, 351 F.3d at 920.
Here, whether the limitations period for federal habeas relief should be equitably tolled for Petitioner depends on whether his mental state between June 20, 2000 (the day Petitioner's judgment became final on direct review and the limitations period commenced) and June 20, 2001 (the day that the statute of limitations period expired) constituted the kind of extraordinary circumstances beyond his control to make timely filing impossible. It is notable that even if the limitations period was tolled during that time, the Petition is still almost three years late. Thus, the Court will examine the record between June 20, 2000 (the day the limitations period commenced) and May 31, 2004 (365 days before Petitioner filed the instant Petition) for reference to Petitioner's mental health.
In his Petition filed May 31, 2005, Petitioner contends that he did not file a collateral attack sooner because he is proceeding pro se, without knowledge of the law, and with inadequate legal materials to support his claims. (Pet. at 4) He makes no reference to his mental health. In his Opposition filed December 19, 2005, Petitioner contends that he is currently a patient in the Correctional Clinical Case Management System at the prison and is assigned a Clinical Case Manager whom he meets with at least once every 90 days. (Opp'n at 2) Petitioner further contends that he currently takes medication for his mental health, and "the effects of this medication put Petitioner in distress, when it comes to reading and writing, for this reason, he was unable to file the instant petition within the time limits . . ." (Opp'n at 3) Petitioner attaches as evidence a California Department of Corrections ("CDC") form for Mental Health Placement dated March 9, 2005, CDC Case Managers Progress Notes dated October 27, 2004, October 28, 2004, November 3, 2004, November 30, 2004, and December 7, 2004, and a CDC Suicide Risk Evaluation form dated October 21, 2004. In a motion for appointment of counsel filed by Petitioner on August 30, 2005, Petitioner claims that he is "currently under doctor's care for mental problems. He is also taking mind altering drugs that befogs his thinking." (Doc. 10 at 3) Petitioner attached the same exhibits as described above plus a CDC Patient Profile of Current Prescriptions form dated August 16, 2005. In a subsequent request for appointment of counsel filed on December 19, 2005, Petitioner claimed that he "take[s] medication that put[s] him in distress, when it comes to reading, and writing." (Doc. 18 at 2) Petitioner again attached the same exhibits described above.
In the Petition on page 15, Petitioner does include some insight into someone's mental health other than his own. It appears that Petitioner copied pages from an unknown source and attached them as pages 12-22 of his Petition. For example, on page 14 it states "In deference to this Court's Orders of 21 January 2000, and 22 February 2000, Petitioner seeks adjudication and scrutiny of the merits regarding his sentence of 50-years to life for petty theft." (Pet. at 14) This statement clearly refers to someone other than Petitioner because the facts stated have no correlation to Petitioner's case. Since the facts are clearly speaking of someone other than Petitioner, the Court disregards all reference to the unknown person's mental health on pages 12-22 of the Petition.
Plaintiff did not sign his Opposition. The Court can not construe the Opposition as a sworn affidavit. See Laws, 351 F.3d at 923. Regardless, even if the Court were to construe it as a sworn affidavit (which it can not), Petitioner is still time barred as the Court will show.
Giving Petitioner the benefit of the doubt as to the evidence before the Court, Petitioner has not alleged that his mental health between June 20, 2000 and May 31, 2004 was the but-for, let alone the proximate, cause of his untimeliness. Instead, Petitioner claims that the medication he is currently taking is the but-for cause of the late filing. He also claims that he is currently under a doctor's care for mental health issues. Petitioner has only offered evidence that he was taking medication and under a doctor's care for the period between October of 2004 to the present. Furthermore, there is no record that Petitioner has a long history of mental illness because there is no mention of Petitioner's mental health in his direct appeal to the California Supreme Court filed February 7, 2000, nor in the instant Petition. In fact, in the instant Petition, Petitioner contends that he did not file a collateral attack previously only because he was a layman, proceeding pro se, without adequate law materials. Even though Respondent has not rebutted Petitioner's mental health claims, there is no evidence that Petitioner suffered from mental health issues or was taking medication that "fogged" his thinking before October 2004, three years after the limitations period had expired. The Court can only guess if once in prison, Petitioner's mental health declined. Regardless, the facts provided do not support Petitioner's claims that equitable tolling is appropriate to warrant further development of the record.
This Court finds that Petitioner has failed to allege facts sufficient to establish that he was precluded from timely filing the instant Petition. Accordingly, equitable tolling is not appropriate under the circumstances.
2. Conclusion
This Court finds that the instant Petition is untimely and the AEDPA's tolling provisions fail to bring the Petition within the applicable statute of limitations period. Accordingly, this Court recommends that Respondent's Motion to Dismiss be GRANTED.
EXHAUSTION OF STATE JUDICIAL REMEDIES
Respondent further argues that Petitioner failed to exhaust state judicial remedies as to six of the nine grounds presented in his Petition. The exhaustion of available state judicial remedies is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). As a matter of federal-state comity, federal courts generally do not consider a claim in a habeas corpus proceeding until the state courts have had an opportunity to act upon the claim. Rose, 455 U.S. at 515. To satisfy the exhaustion requirement a petitioner must first provide the state courts with a "`fair opportunity' to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)). Petitioner must present his claim to the state's highest court on direct or collateral review by "fairly presenting" the substance of the federal claim to the state court. See Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986); Picard, 404 U.S. at 275.
In his Petition, Petitioner sets forth ten claims, only four of which he presented to the California Supreme Court in his petition for review. Arguably, Petitioner raised claims one, two, four, and eight to the California Supreme Court. Petitioner did not present the state supreme court with "fair opportunity" to consider claims three, five, six, seven, nine, and ten. See Anderson, 459 U.S. at 6. Thus, those claims are not exhausted.
However, if Petitioner were to attempt to raise those claims before the California courts, the petition will probably be deemed time barred. In that case, "it is possible that the claim is exhausted because it is procedurally barred." See Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001)). However, given the complexity of California's procedural rules, this Court cannot say with any certainty whether the California courts would bar the claim. See generally Cassett v. Stewart, 406 F.3d 614, 622-23 (9th Cir. 2005) (declining to decide whether claim would be procedurally barred under Arizona state law) (citingTaylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (`Principles of comity and federalism counsel against substituting our judgment for that of the state courts. . . ."). Regardless, even if Petitioner were to exhaust his claims in state court, he would be time barred upon his subsequent return to federal court. Thus, the Court recommends Respondent's motion to dismiss for failure to exhaust be GRANTED.
CONCLUSION AND RECOMMENDATION
For the reasons set forth above, this Court recommends that Respondent's Motion to Dismiss be GRANTED and the Petition be dismissed as untimely. This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than March 10, 2006 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 17, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).