ALICIA G. ROSENBERG, Magistrate Judge.
Petitioner was convicted by a jury of second degree robbery. Petitioner admitted a prior strike conviction and a prior prison term. Petitioner was sentenced to 10 years in state prison. On March 29, 2012, the California Court of Appeal affirmed the judgment. (Lodged Document (LD) 4.) Petitioner did not file a petition for review in the California Supreme Court.
On June 4, 2012, Petitioner constructively filed a petition for writ of habeas in the Los Angeles County Superior Court, which denied it on June 12, 2012. (LD 5-6.) On July 12, Petitioner constructively filed a habeas petition before the California Court of Appeal, which denied it on August 16, 2012. (LD 7-8.) On August 29, 2012, Petitioner constructively filed a habeas petition before the California Supreme Court, which denied it on December 12, 2012, with a citation to In re Waltreus, 62 Cal.2d 218, 225 (1965). (LD 9-10.)
On January 10, 2013, Petitioner constructively filed the original petition for writ of habeas corpus in this court. Respondent filed a motion to dismiss the petition on the ground that it was wholly unexhausted.
On August 6, 2013, Petitioner constructively filed a second habeas petition in the California Supreme Court. (LD 11.) On November 13, 2013, the California Supreme Court denied the petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), In re Clark, 5 Cal.4th 750, 767-69 (1993), and In re Swain, 34 Cal.2d 300, 304 (1949). (LD 12.)
On December 5, 2013, Petitioner filed in this court a First Amended Petition for Writ of Habeas Corpus ("FAP"). Cooks v. Beard, CV 13-811 AGR ("Cooks I"). The FAP in Cooks I raised six grounds for relief: (1) a Batson claim;
On January 6, 2015, the court found that the FAP was a mixed petition that contained one exhausted claim (Ground Six) and five unexhausted claims (Grounds One through Five). The court gave Petitioner three options: (1) file a motion to stay proceedings pending exhaustion in state court; (2) voluntarily dismiss the unexhausted claims and proceed on the exhausted claim; or (3) request dismissal of the petition, exhaust his claims in state court and file a new habeas petition that was fully exhausted. As to the third option, the court cautioned, in bold print, that any new habeas petition would be subject to the one-year statute of limitations and expressed no opinion as to whether any new habeas petition would be timely. (Dkt. No. 42.)
On March 9, 2015, Petitioner filed a notice of voluntary dismissal of the FAP. (Dkt. No. 45.) The court dismissed the FAP without prejudice on March 11, 2015. (Dkt. No. 46.)
On April 6, 2015, Petitioner filed a third habeas petition before the California Supreme Court. (LD 13.) On June 10, 2015, the California Supreme Court denied the petition with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), and In re Clark, 5 Cal. 4th at 767-69. (LD 14.)
On June 30, 2015, Petitioner constructively filed a habeas petition in a separate action, Cooks v. Soto, CV 15-5419 JGB (AGR) ("Cooks II"). This court issued an order to show cause why it should not recommend that the petition be dismissed as untimely. In response, Petitioner filed a motion to stay in Cooks II. Based on the substance of that motion, it was evident to the court that Petitioner intended to file the motion in Cooks I. The motion for stay expressly cited the court's opinion and order on January 6, 2015, which was issued in Cooks I and not Cooks II. Moreover, the motion for stay argued that Petitioner should have filed a motion to stay in Cooks I in order to exhaust his claims rather than file a dismissal. The court construed Petitioner's motion for stay as a motion for relief from judgment under Fed. R. Civ. P. 60(b)(1) and (6) in Cooks I, and ordered briefing.
On January 19, 2016, the court granted Petitioner's motion, vacated the prior dismissal of this case and deemed the Cooks II petition as the Second Amended Petition ("SAP") in Cooks I. The court ordered a response to the SAP. (Dkt. No. 54.)
On March 17, 2016, Respondent filed a motion to dismiss the SAP as untimely. Petitioner filed an opposition. ("Opp.")
On July 25, 2016, Cooks I and Cooks II were consolidated. As discussed above, the petition in Cooks II is the same as the SAP in Cooks I. For ease of reference, this orders refers to the SAP except when indicated otherwise. The parties consented to have a magistrate judge conduct all further proceedings in both actions.
These actions were filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the court applies the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D).
The statute of limitations applies to each ground for relief on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
The SAP contains two grounds for relief. The SAP does not repeat grounds asserted in the original Petition or the First Amended Petition. Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir. 2008). Moreover, Petitioner does not indicate any intention to pursue the grounds asserted in the prior petitions he filed in Cooks I. Therefore, the court addresses only the grounds in the SAP.
"A claim added to a timely filed habeas petition after the expiration of the statute of limitations is timely only if the new claim relates back to a properly filed claim contained in the original petition." Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013). A new claim relates back if it arises out of a "common `core of operative facts' uniting the original and newly asserted claims.'" Mayle v. Felix, 545 U.S. 644, 659 (2005) (citation omitted). An amendment does not relate back "when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading sets forth." Id. at 650. The "time and type" language "refers not to the claims, or grounds for relief. Rather, it refers to the facts that support those grounds." Nguyen, 736 F.3d at 1297 (italics omitted); King v. Ryan, 564 F.3d 1133, 1140-42 (9th Cir. 2009).
In Ground One, Petitioner contends that the trial court failed to obtain in a proper manner Petitioner's waiver before accepting Petitioner's admission of the prior strike. In Ground Two, Petitioner argues his trial counsel was ineffective for advising him to admit the prior conviction for bank robbery and his appellate counsel was ineffective for failing to raise this issue on direct appeal.
Petitioner did not raise these two claims in either the original Petition constructively filed on January 10, 2013, or the FAP constructively filed on November 20, 2013 in Cooks I. In both petitions, Ground Three stated: "to impeach the accused based on priors without the open testimony of the accused violates the 6th & 14th amendment." (Dkt. No. 1 at 6; Dkt. No. 30 at 6.) Petitioner contended that his prior robbery conviction "could not have been used in this case because defendant did not testify which was in fact prejudicial to defendant." (Id.) In Ground Five of those petitions, Petitioner argued that the trial court erred in sentencing because "all priors were stri[c]ken." (Id.) In Ground Six of the FAP, Petitioner argued the trial court erred in choosing the high term instead of the mid term. (Dkt. No. 30 at 7.)
Grounds One and Two in the SAP do not share any operative facts with the grounds contained in the original Petition and FAP. Grounds One and Two in the SAP turn on the circumstances under which Petitioner waived his right to trial on the priors and admitted his priors, and counsel's advice to admit the priors rather than go to trial. By contrast, in both the original Petition and FAP, Ground Three focused on Petitioner's argument that a prior conviction cannot be used when the defendant does not testify, and Ground Five turned on whether the trial court struck all prior convictions. Ground Six of the FAP turned on the reasons why the trial court chose the high term rather than the mid term. See Schneider v. McDaniel, 676 F.3d 1144, 1150-52 (9th Cir. 2012). Although all of these grounds can be said to relate to Petitioner's prior conviction, Mayle forecloses the argument that new claims relate back simply because they relate generally to a petitioner's sentence. E.g., Gibson v. Artus, 407 Fed. Appx. 517, 519 (9th Cir. 2010) (unpub.) (new claims do not relate back even though each involves grand jury stage of proceedings).
Given that the SAP does not relate back to the earlier petitions, the SAP is untimely. The California Court of Appeal affirmed Petitioner's conviction on March 29, 2012. (LD 4.) Because Petitioner did not file a petition for review with the California Supreme Court, his conviction became final 40 days later on May 8, 2012. See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005). Absent tolling, the statute of limitations expired one year later on May 8, 2013.
The statute of limitations is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
There is no statutory tolling from the time Petitioner's conviction became final (May 8, 2012) and the constructive filing of the first state habeas petition on June 4, 2012. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. 2007).
Petitioner is entitled to statutory tolling for the period from the constructive filing of his first state habeas petition on June 4, 2012 through December 12, 2012, the date on which the California Supreme Court denied Petitioner's first state habeas petition before it. Absent additional tolling, the limitations period expired on November 18, 2013.
Petitioner apparently mailed a motion to supplement his habeas petition to the California Supreme Court on January 2, 2013. On January 18, 2013, the Clerk of the California Supreme Court returned the documents unfiled and stated that the Court's order "was final forthwith and may not be reconsidered." (See documents attached to Dkt. No. 8.) Petitioner is not entitled to statutory tolling for this period because the motion to supplement was not "properly filed." 28 U.S.C. § 2244(d)(2).
On August 6, 2013, Petitioner constructively filed a second habeas petition in the California Supreme Court, which was denied by the California Supreme Court with citations on November 13, 2013. (LD 11-12.) Assuming without deciding that Petitioner is entitled to statutory tolling during this period, the limitations period expired on February 25, 2014.
Petitioner is not entitled to gap tolling between denial of his first habeas petition before the California Supreme Court and the constructive filing of the second habeas petition before that same court. The Ninth Circuit employs a two-part test for gap tolling: "`First, we ask whether the petitioner's subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition. If not, these petitions constitute a "new round" and the gap between the rounds is not tolled. But if the petitioner simply attempted to correct the deficiencies, then the petitioner is still making proper use of state court procedures, and his application is still `pending' for tolling purposes. . . . We then ask whether they were ultimately denied on the merits or deemed untimely. In the former event, the time gap between the petitions is tolled; in the latter event it is not.'" Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012) (citation omitted). Petitioner's first habeas petition contained only one claim that became Ground Six of the FAP in Cooks I. (LD 9.) The California Supreme Court denied relief with a citation to In re Waltreus, 62 Cal.2d 218, 225 (1965). (LD 10.) Petitioner's second habeas petition in the same court presented five new claims for relief that correspond to Grounds One through Five of the FAP. (LD 11.) Because the second petition was not limited to an elaboration of the facts relating to the claims in the first petition, Petitioner is not entitled to gap tolling. Stancle, 692 F.3d at 955-56.
Petitioner is not entitled to statutory tolling for his most recent habeas petition filed on April 6, 2015 before the California Supreme Court. A petition filed after expiration of the statute of limitations does not revive the limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Moreover, the California Supreme Court denied the petition with a citation to Robbins, which indicates the state habeas petition was untimely. Thorson, 479 F.3d at 645-46. An untimely state habeas petition does not entitle a petitioner to statutory tolling. Allen v. Siebert, 552 U.S. 3, 7 (2007).
The filing of a petition for writ of habeas corpus in federal court does not toll the statute of limitations. Duncan v. Walker, 533 U.S. 167, 172 (2001). Accordingly, the SAP is untimely because it was constructively filed on June 30, 2015, after the limitations period expired no later than February 25, 2014.
The limitations period may begin on "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).
The statute starts to run when the petitioner knows or through diligence could discover the factual predicate, not when a petitioner recognizes their legal significance. Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001).
The factual predicate of Ground One of the SAP (Petitioner's admission of a prior strike) was known to Petitioner no later than November 23, 2010, the date of the hearing on sentencing. (Exh. E to SAP.) The hearing on the priors took place earlier on October 27, 2010. (Exh. C to SAP.) At the priors hearing, the prosecutor advised Petitioner that a fingerprint expert and paralegal were there to testify about a comparison of Petitioner's fingerprints and the authenticity of the packets on the priors. (Id. at 1202-03.) The prosecutor advised Petitioner that he had a right to a trial in which his attorney would cross examine the witnesses, test the packets and test the evidence. (Id. at 1203.) Petitioner waived his right to a trial on the priors and stated he understood that the bank robbery conviction constituted a strike. (Id. at 1203-04.) The court noted that Petitioner had previously waived a jury trial on the priors. (Id. at 1204.)
In Ground Two of the SAP, Petitioner argues his trial counsel was ineffective for advising him to admit the prior conviction for bank robbery and his appellate counsel was ineffective for failing to raise this issue on direct appeal. Petitioner argues that he told his trial counsel before the October 27, 2010 hearing that his role in the "note passing" bank robbery was the getaway driver. (Exh. D at 2 to SAP.) Petitioner argues that trial counsel falsely advised him that, if he admitted the prior bank robbery, the court "would have leniency and dismiss the prior conviction. However, the court did not dismiss the prior conviction and used the prior conviction . . . to impose a double term." (Opp. at 4.)
Again, the factual predicate of Ground Two of the SAP was known to Petitioner no later than November 23, 2010, the date of the sentencing hearing. (Exh. E to SAP.) Although Petitioner argues that appellate counsel ignored his complaint that his sentence was illegal, Petitioner attaches a letter from appellate counsel dated September 20, 2011, that inquired about the facts supporting Petitioner's argument about the bank robbery. (Exh. F to SAP.) Petitioner does not attach his response to appellate counsel. The court notes that Petitioner appears to claim that the prosecutor incorrectly identified bank robbery under 18 U.S.C. § 2113(a). Petitioner contends he was convicted in a "note passing" bank robbery under § 1821. (SAP at 10.) However, that section applies to transportation of dentures made by unlicensed persons, not bank robbery. 18 U.S.C. § 1821. To the extent Petitioner argues that he was convicted of unarmed bank robbery as the getaway driver, that offense falls within 18 U.S.C. § 2113(a). See United States v. Dinkane, 17 F.3d 1192, 1199 (9th Cir. 1994).
Accordingly, Petitioner was aware of the factual predicates of his claims as to trial counsel no later than the sentencing hearing, and as to appellate counsel no later than the date his conviction became final on May 8, 2012. The date of discovery does not extend the limitations period. Petitioner has not provided no explanation as to why he failed to raise these grounds in his original Petition or FAP in Cooks I, or in state habeas petitions prior to April 6, 2015. See Rhoades v. Henry, 598 F.3d 511, 520 (9th Cir. 2010) (petitioner failed to exercise diligence).
"[T]he timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Holland v. Florida, 560 U.S. 631, 634 (2010). "[A] `petitioner' is `entitled to equitable tolling' only if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 632 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, (2005)). "The diligence required for equitable tolling purposes is "reasonable diligence," not "maximum feasible diligence." Id. at 653 (citations and quotation marks omitted). The extraordinary circumstances must have been the cause of an untimely filing. Pace, 544 U.S. at 418. "[E]quitable tolling is available for this reason only when `"extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time"` and `"the extraordinary circumstances" were the cause of [the prisoner's] untimeliness.'" Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citations omitted, emphasis in original).
Petitioner has not shown a basis for sufficient equitable tolling. Petitioner previously argued that he arrived at California State Prison — Los Angeles County ("CSP-LAC") on April 18, 2012 and did not have his property for 14 months, or approximately June 18, 2013. (Dkt. No. 52 at 2.) Assuming the validity of Petitioner's argument, he had eight months remaining before expiration of the statute of limitations on February 25, 2014, with the benefit of statutory tolling as discussed above.
For the reasons discussed above, IT IS HEREBY ORDERED that Respondent's motion to dismiss the Second Amended Petition in Cooks I is GRANTED and that judgment be entered dismissing the Second Amended Petition as untimely.
IT IS FURTHER ORDERED that the same Petition in Cooks II is untimely and that judgment be entered dismissing the Petition as untimely.
