FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 11]

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Robert C. Nash, of the Office of the Attorney General for the State of California.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, upon being convicted by a jury on March 9, 2010 of first degree murder with a number of special circumstances and sentencing enhancements. (See Lodged Docs. No. 1-2.) On May 18, 2010, Petitioner was sentenced to an indeterminate state prison term of life without the possibility of parole, plus twenty-five (25) years to life, plus an additional twenty-two (22) years. (Id.)

On October 31, 2011, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme Court on February 15, 2012. (Lodged Docs. 3-4.)

Starting in January 2013, Petitioner filed three post-conviction collateral challenges with respect to his conviction in the state courts filed as follows:

(See Lodged Docs. 5-10.)

On April 23, 2014, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.4 On August 20, 2014, Respondent filed a Motion to Dismiss the petition as having been filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (Mot. to Dismiss, p.1.) Petitioner filed objections to the motion on September 10, 2014, and Respondent filed a reply on September 17, 2014. (ECF Nos. 13-14.)

II. DISCUSSION

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

In this case, Respondent's motion to dismiss is based on a violation of the one-year limitations period. 28 U.S.C. § 2244(d)(1). Because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A)

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

In this case, the petition was filed on April 23, 2014 and is subject to the provisions of AEDPA. 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, § 2244, subdivision (d) reads:

28 U.S.C. § 2244(d).

Under § 2244(d)(1)(A), the limitations period begins running on the date that the petitioner's direct review became final or the date of the expiration of the time for Seeking such review. In this case, the California Supreme Court denied review on February 15, 2012. The state appeal process became final ninety days later, on May 15, 2012, when the time for Seeking certiorari with the United States Supreme Court expired. U.S. Supreme Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations began to run the following day, on May 16, 2012. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner had one year from May 16, 2012, absent applicable tolling, in which to file his federal petition for writ of habeas corpus. However, Petitioner delayed in filing the instant petition until April 23, 2014, nearly a year after the statute of limitations period expired. Absent the later commencement of the statute of limitations or any applicable tolling, the instant petition is barred by the statute of limitations.

C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

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 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals between one state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the state court system. 536 U.S. 214, 216 (2002); See also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Nevertheless, state petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or determined by the federal courts to have been untimely in state court will not satisfy the requirements for statutory tolling. Id.

Petitioner filed his first petition with the Kern County Superior Court on January 9, 2013, and his second petition with the California Court of Appeal on May 2, 2013. Respondent concedes that Petitioner is entitled to tolling during the time the petitions were pending in state court and a reasonable period between filing the petitions. However, 238 days of the limitation period passed before the first application was filed. Based on such tolling, 127 days of the limitations period remained when the California Court of Appeal petition was denied on July 26, 2013.

Petitioner next filed a petition with the California Supreme Court. (Lodged Doc 9.) The petition is signed on October 1, 2013. However, the proof of service of mailing is dated roughly two weeks earlier on September 19, 2013. (Id.) Due to the inconsistencies in dates, the Court ordered Respondent to provide the prison mail records for the relevant time period. (Order, ECF No. 15.) Respondent provided those records on October 28, 2014, but they do not reflect any outgoing mail during the relevant period. (ECF No. 16.) Respondent notes that there is a record of incoming mail to Petitioner from the California Supreme Court on October 1, 2014. (Id.) Respondent speculates that the record might actually be for the mailing of Petitioner's petition, but mistakenly listed as incoming mail, rather than outgoing mail. Without more, this Court is unable to definitively tell from the mailing log alone when the petition was mailed.

While Respondent argues that the petition was provided to prison staff for mailing on October 1, 2013, the date stamps on the petition provide strong evidence that Petitioner mailed the petition in mid-September. The California Supreme Court placed a `filed' stamp on the petition dated on October 9, 2013. Additionally, on the lower right hand corner, the California Supreme Court stamped the petition as `received' on September 23, 2013. (See Lodged Doc. 9 at 1.) Based on the earlier date that the petition was received, the Court finds it likely that the petition was mailed prior to September 23, 2103, and that Petitioner is entitled to the filing date of September 18, 2013, the date placed on the proof of service of mailing.

In producing the mail logs, Respondent argues that Petitioner could not have validly filed the application prior to signing, and is only entitled to a filing date on October 1, 2013. Respondent refers to state law for the proposition that petitions must be verified to be properly filed in state court. (Response, ECF No. 16 at 3, citing Cal Penal Code § 1474(3); People v. Madaris, 122 Cal.App.3d 234, 241 (1981); People v. Adams, 101 Cal.App.3d 791, 802 (1980).) However, in this case, Petitioner did verify the petition. It appears he inserted the wrong date. Respondent has not provided any authority suggesting such an error would nullify Petitioner's verification. The California Supreme Court, in reviewing the petition, denied the petition on other grounds. (See Lodged Doc. 10.)

Respondent has provided no authority to suggest that an improper verification would deprive Petitioner of the benefit of the mailbox rule as established under federal law. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385, 101 L. Ed. 2d 245 (1988); Campbell v. Henry, 614 F.3d 1056 (9th Cir. 2010). As the Supreme Court explained in Houston v. Luck, the mailbox rule was created based on the need to create a straightforward method to determine the date of mailing. Houston, 487 U.S. at 275 ("The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox — he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.") Based on the record before the Court, the Court finds that Petitioner is entitled to the earlier filing date of September 18, 2013, the date that Petitioner verified as the date of mailing on the proof of service.

Thus, Petitioner's California Court of Appeal decision was denied on July 26, 2013, and Petitioner filed his California Supreme Court decision 54 days later on September 18, 2013. In Evans v. Chavis, 546 U.S. 189, 201 (2006) the Supreme Court ruled that a delay of six months between the denial of a petition and the filing of another was an "unjustified delay," The Court stated, "Six months is far longer than the `short periods of time,' 30 to 60 days, that most States provide for filing an appeal to the state supreme court." Id. As petitioner filed his petition in less than sixty days, the court finds that the petition is entitled to interval tolling during the time between petitions and during the time the petition was pending. See Velasquez v. Kirkland, 639 F.3d 964 (9th Cir. 2011). Therefore 127 days of the limitations period remained when the Supreme Court Petition was denied on January 21, 2014.

Petitioner filed the instant petition 92 days later on April 23, 2014. As 35 days of the limitations period remained, the petition was timely filed. The Court recommends that the motion to dismiss be denied with respect to the untimeliness claim.

D. Exhaustion

1. Applicable Law

As a matter of comity, a federal court will not grant habeas relief to a petitioner held in state custody unless he has exhausted the available state judicial remedies on every ground presented in the petition. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L. Ed. 2d 1 (1999); See also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L. Ed. 2d 64 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust available state remedies before Seeking federal habeas relief).

Exhaustion requires that the petitioner's contentions be "fairly presented" to the state courts and disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). A claim has not been "fairly presented" unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which the claim is based. Gray v. Netherland, 518 U.S. 152, 162-163, 116 S.Ct. 2074, 135 L. Ed. 2d 457 (1996); Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). Thus, a claim is unexhausted where the petitioner did not fairly present either the factual or the legal basis for the claim to the state's highest court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L. Ed. 2d 438 (1971).

Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972); Werts v. Vaughn, 228 F.3d 178, 192 (3rd Cir. 2000). For purposes of exhaustion, the petition "must be read in context and understood based on the particular words used." Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc); Davis, 511 F.3d at 1009 (citations and quotations omitted). The exhaustion requirement is not meant to "trap the unwary pro se prisoner." Slack v. McDaniel, 529 U.S. 473, 487, 120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000). Rather, "the [Supreme] Court has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro se pleadings generously, `however inartfully pleaded.'" Davis, 511 F.3d at 1009 n. 4 (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam)).

2. Review of Petitioner's Claims

Petitioner raises seven claims in the instant Petition: (1) Failure to grant defense counsel's request to allow witnesses to testify in a closed courtroom because they feared for their safety violated Petitioner's Sixth Amendment right to present a defense and right to compulsory process; (2) The trial court erred when it struck the testimony of Myja Gardner, denying Petitioner his state and federal right to a fair trial; (3) The trial court erred when it allowed the prosecution to admit propensity evidence in the guise of expert opinion; (4) The denial of Petitioner's motion for juror identification deprived Petitioner of effective assistance of counsel because counsel could not adequately investigate potential juror misconduct; (5) There was insufficient evidence to prove the gang enhancement and special circumstance; (6) Petitioner's counsel was ineffective in failing to investigate and present potential favorable evidence on behalf of Petitioner by not cross-examining witnesses against him; and (7) The trial court violated the defendant's constitutional rights to due process under the Sixth and Fourteenth Amendments by failing to instruct the jury of the factual elements of the charge of active participation in a criminal street gang. (Pet.)

On December 1, 2011, Petitioner filed a petition for review in the California Supreme Court raising the following five arguments: (1) "Failure to grant defense counsel's request to allow Myja Gardner and Deandra Key to testify in a closed courtroom because they feared for their safety from the Eastside Crips violated Appellant's Sixth Amendment right to present a defense and right to compulsory process;" (2) "The trial court erred when it struck the testimony of Myja Gardner, denying Appellant his state and federal right to a fair trial;" (3) "The trial court erred when it allowed the prosecution to admit propensity evidence in the guise of expert opinion;" (4) "Appellant's motion for juror identification information should have been granted;" and (5) "The evidence is insufficient to prove the gang enhancement, Penal Code section 186.22, subdivision (b)(1) and the gang special circumstance, Penal Code section 190.2, subdivision (a)(22)." (Lod. Doc. 3.)

On October 1, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court raising the following three claims: (1) "The trial court violated defendant's constitutional right to due process under the Sixth Amendment by failing to instruct the jury of the factual elements that the prosecution was required to prove before the jury could properly find true the defendant active[ly] participated in a criminal street gang within the definition of 186.22(a);" (2) "The trial court erred in allowing the admissibility of witness Antoinette Mitchell's testimony, it was irrelevant, speculative hearsay testimony that lacked foundation that Appellant was an `active participant' in a criminal street gang and that the offense was gang related;" and (3) "Appellant received ineffective assistance of counsel when counsel's representation fell below the objective standard by not providing legal assistance. Counsel failed to investigate and present potential favorable evidence on behalf of Appellant by not cross-examining witnesses presented against him." (Lod. Doc. 9.)

Respondent does not challenge exhaustion with regard to the first five claims of the instant petition that were presented on direct appeal. However, Respondent asserts that claims six and seven, presented in Petitioner's state habeas corpus petitions, were not properly exhausted. Claims six and seven of the instant petition were presented to the California Supreme Court (Lodged Doc. 9.) The California Supreme Court denied the petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Dixon, 41 Cal.2d 756, 759 (1953); In re Swain, 34 Cal.2d 300, 304 (1949); and In re Lindley 29 Cal.2d 709, 723 (1947). (Lodged Doc. 10.)

Respondent asserts that the citations to In re Swain and People v. Duvall reference the California rule that, to meet his initial burden of pleading adequate grounds for relief, a California habeas petitioner must state fully and with particularity the facts upon which relief is sought. See People v. Duvall, 9 Cal.4th at 474; In re Swain, 34 Cal.2d at 303-04; See also Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir. 2005).5 The failure to meet the pleading requirements of Duvall and Swain can be cured in a renewed petition. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Thus, where the California Supreme Court denies a habeas petition with citations to Duvall or Swain, the denial can signify a failure to exhaust available state remedies. See Kim, 799 F.2d at 1319. However, a federal habeas court must examine independently the sufficiency of the petitioner's California Supreme Court petition, and will reach the merits of the claims where the state petition presented the claims "with as much particularity as is practicable[.]" Id. at 1320.

Applying the independent examination required by the decision in Kim to this case, the Court finds that Petitioner's claims were fairly presented with as much particularity as practicable in his habeas petition filed in the California Supreme Court. Kim, 799 F.2d at 1320. In the first habeas claim presented to the California Supreme Court, Petitioner argued that the trial court violated defendant's constitutional right to due process under the Sixth Amendment by failing to instruct the jury of the factual elements required to show that defendant actively participated in a criminal street gang within the definition of Cal. Penal Code § 186.22(a). (See Lodged Doc. 9 at 4-14.) Specifically, Petitioner presents the state court the relevant federal and state law regarding due process requirements (Lodged Doc. 9 at 4-5), explains why the burden of proof from proving enhancements is the same as for criminal offenses (Id. at 6-7), and provides significant factual support for his argument, including many cites to the transcript of the trial. (Id. at 1-14.)

In his third claim for relief in California Supreme Court habeas petition, Petitioner claims that he received ineffective assistance of counsel based on counsel's failure to cross examine the prosecution's witnesses. (Lodged Doc. 9 at 20-24.) In his claim Petitioner presents the relevant federal authority for the claim and provides factual support, including describing the witnesses that counsel failed to cross-examine. (Id. at. 21, 23-24.)

The Court finds that Petitioner's claims were fairly presented to the California Supreme Court, with as much particularity as practicable. Kim, 799 F.2d at 1320. Respondent provides no basis to conclude otherwise. (See, generally, Motion to Dismiss at 1-6; Opposition to Motion to Amend at 12-13.) Therefore, Respondent's Motion to Dismiss this action due to Petitioner's failure to satisfy the exhaustion requirement should be denied. See, e.g., Nguon v. Walker, 2011 U.S. Dist. LEXIS 87223, 2011 WL 3501011, at *3-*4 (E.D. Cal. 2011) (denying motion to dismiss petition as unexhausted despite the fact that California Supreme Court denied habeas petition with citation to Duvall, because independent examination of the state petition revealed that petitioner's claims were "fairly presented to the California Supreme Court, with as much particular[it]y as practicable").

III. CONCLUSION

As explained above, Petitioner filed the petition within the one year limitations period and presented claims six and seven of the petition with as much particularity as practicable. This Court recommends that Respondent's Motion to Dismiss be DENIED.

IV. RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for Petitioner's failure to comply with 28 U.S.C. § 2244(d)'s one year limitation period and failure to exhaust state remedies under 28 U.S.C. § 2254(b) be DENIED.

This Findings and Recommendation is 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 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after the date of service of this Findings and Recommendation, 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 fourteen (14) days after service of the Objections. The Finding and Recommendation will then be submitted to the District Court for review of 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, ___ F.3d ___, ___, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.