Samuel v. Runnels

Full title: JASON SAMUEL, Petitioner, v. D.L. RUNNELS, et al., Respondent

Court: United States District Court, E.D. California

Date published: Feb 16, 2006

CV F 04-5519 REC WMW HC (E.D. Cal. Feb. 16, 2006)

Opinion

CV F 04-5519 REC WMW HC.

February 16, 2006

FINDINGS AND RECOMMENDATIONS RE RESPONDENT'S MOTION TO DISMISS [Doc. 13]

WILLIAM WUNDERLICH, Magistrate Judge

Petitioner is a prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is Respondent's motion to dismiss the petition. Petitioner opposes the motion.

BACKGROUND

Following a jury trial in Kern County Superior Court, Petitioner was convicted of attempted murder of a peace officer under Penal Code Section 187(a); resisting an executive officer under Penal Code Section 69; and obstructing a public officer under Penal Code Section 148(c). The jury found true the special allegations that Petitioner personally used a firearm and inflicted great bodily injury during the commission of the offenses of attempted murder and resisting an executive officer within the meaning of Penal Code sections 12022.5(a) and 12022.7, and that he should have known that the victim was a peace officer engaged in the performance of his duties within the meaning of section 664(e)(1). The trial court sentenced Petitioner to the indeterminate state prison term of life with the possibility of parole, plus nineteen years, eight months.

Petitioner filed a direct appeal from his sentence. On March 31, 2000, the California Court of Appeal, Fifth Appellate District ("Court of Appeal"), affirmed the judgment in case number F030624. Petitioner filed a petition for review with the California Supreme Court, which denied the petition on June 14, 2000.

Petitioner filed four post-conviction collateral challenges to his conviction, all of which were petitions for writ of habeas corpus. The first petition was filed in Kern County Superior Court on November 19, 2002, and was denied on December 19, 2002. The second petition was filed in Kern County Superior Court on March 4, 2003, and was denied on April 2, 2003. The third petition was filed in the Court of Appeal on April 23, 2003, and was denied on June 6, 2003. The fourth petition was filed in the California Supreme Court on June 16, 2003, and was denied on February 18, 2004.

LEGAL STANDARDS

JURISDICTION

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 120 S.Ct. 1495, 1504 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 2241(d). Accordingly, the court has jurisdiction over the action.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997);Jeffries v. Wood, 114 F.3d 1484, 1499 (9^th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5^th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed on April 2, 2004, after the enactment of the AEDPA, thus it is governed by its provisions.

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9^th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).

While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983);Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9^th Cir. 1997).

STATUTE OF LIMITATIONS

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). As amended, Section 2244, subdivision (d) reads:

(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.

In most cases, the limitation period begins running on the date that the petitioner's direct review became final. Here, the Petitioner was convicted on April 13, 1998. Petitioner's petition for review was denied by the California Supreme Court on June 14, 2000.¹ Thus, direct review would conclude on September 12, 2000, when the ninety (90) day period for seeking review in the United States Supreme Court expired.² Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9^th Cir. 1999) (concluding period of "direct review" includes the period within which one can file a petition for a writ of certiorari in the United States Supreme Court);Smith v. Bowersox, 159 F.3d 345, 347 (8^th Cir. 1998). Petitioner would have one year from September 13, 2000, absent applicable tolling, in which to file his federal petition for writ of habeas corpus. See, Patterson v. Stewart, 251 F.3d 1243, 1245 (9^th Cir. 2001) (holding that Rule 6(a) of the Federal Rules of Civil Procedure governs the calculation of statutory tolling applicable to the one year limitations period.)

1 Cal. R. Ct. 24(a) providing that an order of the Supreme Court denying a petition for review of a decision of a Court of Appeal becomes final when it is filed.

2 See Sup.Ct. R. 13(1).

Title 28 U.S.C. § 2244(d)(2) states 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" the one year limitation period. 28 U.S.C. § 2244(d)(2). In Nino v. Galaza, the Ninth Circuit held that the "statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge."³ Nino v. Galaza, 183 F.3d 1003, 1006 (9^th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000);see, also, Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999);Barnett v. Lemaster, 167 F.3d 1321, 1323 (10^th Cir. 1999). The Court reasoned that tolling the limitations period during the time a petitioner is preparing his petition to file at the next appellate level reinforces the need to present all claims to the state courts first and will prevent the premature filing of federal petitions out of concern that the limitation period will end before all claims can be presented to the state supreme court. Id. at 1005.

3 In California, the Supreme Court, intermediate Courts of Appeal, and Superior Courts all have original habeas corpus jurisdiction. See, Nino 183 F.3d at 1006, n. 2 (9^th Cir. 1999). Although a Superior Court order denying habeas corpus relief is non-appealable, a state prisoner may file a new habeas corpus petition in the Court of Appeal. Id. If the Court of Appeal denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the Supreme Court.See, id.

The limitations period is subject to equitable tolling if "extraordinary circumstances beyond a prisoner's control" have made it impossible for the petition to be filed on time.Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9^th Cir. 1998), citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9^th Cir. 1996), cert denied, 522 U.S. 814, 118 S.Ct. 60, 139 (1997); Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283,1288 (9^th Cir.), overruled in part on other grounds by, Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9^th Cir. 1998) ( en banc) (noting that "[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time"). "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 (9^th Cir. 1999), citing Kelly, 163 F.3d at 541; Beeler, 128 F.3d at 1288-1289.

DISCUSSION

TIMELINESS OF PETITION

Respondent contends that the petition should be dismissed as untimely. Specifically, Respondent contends that the petition was filed beyond the statute of limitations and that Petitioner is not entitled to equitable tolling of the statute. Respondent argues first that Petitioner's post-conviction challenges did not serve to toll the statute of limitations, because the first of these challenges was filed over fourteen months after the limitations period expired. Petitioner does not dispute this argument by Respondent, and the court agrees with Respondent that because the limitations period had already expired, Petitioner's collateral challenges had no tolling consequence. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (petitioner is not entitled to tolling where the limitations period has already run); see also Webster v. Moore, 199 F.3d 1256 (11th Cir. 2000).

Second, Respondent argues that Petitioner is not entitled to equitable tolling of the statute of limitations. Petitioner disputes this, arguing that he is of low intelligence and functionally illiterate, and that lockdowns restricted his access to the library, which prevented him from filing his post-conviction challenges sooner.

As set forth above, the limitations period is subject to equitable tolling if "extraordinary circumstances beyond a prisoner's control" have made it impossible for the petition to be filed on time. Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d at 541. The burden of demonstrating that extraordinary circumstances exist lies with the petitioner. United States v. Marolf, 173 F.3d 1213, 1218 n. 3 (9th Cir. 1999); Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (holding that, in order to support a finding of "extraordinary circumstances" sufficient to warrant equitable tolling, the petitioner must show that the circumstances were the "but-for and proximate cause of his untimeliness"). The Ninth Circuit has held that claims of ignorance of the law and illiteracy are insufficient to justify equitable tolling. See, e.g., Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9^th Cir. 1986) (pro se prisoner's illiteracy and lack of knowledge of law unfortunate but insufficient to establish cause); Kibler v. Walters, 220 F.3d 1151, 1153 (9^th Cir. 2000) (lack of knowledge of state law not cause); See, also, Marsh v. Soares, 223 F.2d 1217, 1220 (10^th Cir. 2000); Fisher v. Johnson, 174 F.3d 710 (5^th Cir. 1999); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991). Lack of legal assistance is generally insufficient to justify tolling the statute of limitations. See, Hughes v. Idaho Board of Corrections, 800 F.2d 905, 909 (9^th Cir. 1986).

The court finds that under the controlling case law, Petitioner's claims of low intelligence and illiteracy are clearly not extraordinary circumstances justifying equitable tolling of the statute of limitations. Indeed, these circumstances do not appear to be particularly unusual, much less extraordinary.

In regard to Petitioner's claims regarding prison lockdowns, unpredictable lockdowns or library closures do not generally constitute extraordinary circumstances warranting equitable tolling. See, United States v. Van Poyck, 980 F.Supp. 1108, 1111 (C.D.Cal. 1997) (inability to secure copies of transcripts from court reporters and lockdowns at prison lasting several days and allegedly eliminating access to law library were not extraordinary circumstances and did not equitably toll one-year statute of limitations). As in Van Poyck, Petitioner has not demonstrated that the alleged prison lockdowns substantially interfered with his entire year to file. For this reasons, this court finds that the lockdowns and limited library access do not warrant equitable tolling in this case. The court concludes, therefore, that Respondent is correct in arguing that this petition is time-barred.

Exhaustion

Respondent separately contends that this petition must be dismissed because Petitioner has failed to exhaust his state judicial remedies. Petitioner argues that the court's failure to address his claims because of procedural default would result in a miscarriage of justice. He asks the court to dismiss the petition without prejudice and to stay the action so that he can exhaust any unexhausted claims. As set forth above, exhaustion of state judicial remedies is generally a prerequisite to obtaining habeas corpus relief in federal court. In the present case, the court has found that the applicable statute of limitations has run and that Petitioner is not entitled to either statutory or equitable tolling. Therefore, the court finds it unnecessary to address the issue of exhaustion, because it has become moot. Regardless of which party is correct on this issue, this case is barred by the statute of limitations.

Based on the foregoing, the court HEREBY RECOMMENDS that this petition be dismissed with prejudice as barred by the applicable statute of limitations.

These Findings and Recommendation are submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty (20) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.