JILL L. BURKHARDT, Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
Petitioner Mario A. Willis ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging the state court's denial of a petition to recall his sentence under Cal. Penal Code § 1170.126. (ECF No. 1 at 2.) On July 30, 2018, Respondent J. Gastelo, Warden, ("Respondent"), moved to dismiss the Petition on the ground that the Petition is time-barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d). (ECF No. 19.) On October 17, 2018, Petitioner filed an opposition,
After a thorough review of the Petition, the Motion to Dismiss, the Opposition, and all supporting documents, the Court finds that the Petition is untimely. Accordingly, the Court
On April 10, 2008, a San Diego Superior Court jury, in case number SDC208339, convicted Petitioner of possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)), possession of a deadly weapon (Cal. Penal Code § 12020(a)(1)), and illegal possession of ammunition (Cal. Penal Code § 12316(b)(1)). (ECF Nos. 1 at 2; 20-1 at 1.) Petitioner admitted to prior strike convictions and on June 23, 2008, was sentenced to twenty-five years to life in prison. (ECF Nos. 1 at 2; 20-1 at 1-2; see ECF No. 20-2 at 10.)
On February 13, 2009, Petitioner appealed his sentence to the California Court of Appeal, raising three claims unrelated to the instant Petition.
On November 7, 2012, Proposition 36, also known as the Three Strikes Reform Act of 2012, became effective and modified California's Three Strikes law as it applies to certain third-strike indeterminate sentences.
On March 26, 2013, Petitioner filed a petition to recall his sentence under § 1170.126 in the San Diego County Superior Court. (ECF No. 20-8 at 1.) On December 1, 2014, the court denied the petition. (ECF No. 20-9 at 1.) That same day, Petitioner filed a notice of appeal in the San Diego Superior Court. (ECF No. 20-10 at 1.)
On April 4, 2016, the California Court of Appeal affirmed the superior court's denial of Petitioner's resentencing petition, finding that Petitioner's "use of a firearm during the commission of the third-strike offense disqualified him from relief" under § 1170.126(e)(2). (ECF No. 20-14 at 1-2, 6.) Petitioner then filed a petition for rehearing dated April 8, 2016. (ECF No. 20-15.) On April 18, 2016, the appellate court denied the petition for rehearing without comment. (ECF No. 20-16.)
In a petition dated May 3, 2016,
On August 30, 2017,
On April 4, 2018,
On July 30, 2018, Respondent filed a Motion to Dismiss. (ECF No. 19.) Petitioner filed an opposition on October 17, 2018. (ECF No. 23.) Respondent did not file a reply.
Section 2254(a) of Title 28 of the United States Code provides the scope of review for federal habeas corpus claims:
28 U.S.C. § 2254(a).
In addition, federal habeas corpus claims filed after April 24, 1996, are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (holding that federal courts reviewing any habeas petition filed in federal court after the April 24, 1996 enactment of AEDPA will apply its provisions). Under AEDPA, a petitioner must overcome a high threshold to obtain relief:
28 U.S.C. § 2254(d)(1)-(2); see also Harrington v. Richter, 562 U.S. 86, 100 (2011).
Respondent moves to dismiss the Petition on the ground that it is time-barred pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (ECF No. 19-1 at 3.) Petitioner argues that his petition is not untimely. (ECF No. 23 at 2.)
AEDPA imposes a one-year statute of limitations on all federal habeas petitions filed by persons in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of—
28 U.S.C. § 2244(d)(1)(A)-(D).
Where a petitioner files a federal habeas petition challenging a resentencing decision under a law like the Three Strikes Reform Act of 2012,
Regardless of which subsection of § 2244(d)(1) applies, once a petitioner is notified that his petition is subject to dismissal based on AEDPA's one-year limitations period, he bears the burden of demonstrating that the limitation period is sufficiently tolled under statutory and/or equitable principles. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002), overruled on other grounds by Pace v. Diglielmo, 544 U.S. 408, 418 (2005).
In his Motion to Dismiss, Respondent notes that the case law in this Circuit is unsettled as to when AEDPA's one-year statute of limitations begins for cases such as the instant one, where the petitioner is challenging the denial of his petition for resentencing under newly enacted legislation and not his original judgment and conviction. (ECF No. 19-1 at 4 & n.2.) Respondent therefore analyzes the Petition's timeliness under § 2244(d)(1)(A) because it provides "the most lenient possible start date in calculating the limitations period" in this case. (Id. at 4-5.) Respondent argues that the Petition is untimely even under § 2244(d)(1)(A). (Id.)
In order to determine whether a petition is timely under § 2244(d)(1)(A), the Court must first determine when the state court judgment "became final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). The period of direct review concludes when the time within which a petitioner can file a petition for writ of certiorari in the United States Supreme Court expires. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Under Supreme Court Rule 13, the time to file a petition for writ of certiorari to review a judgment entered by a state court of last resort expires ninety days after entry of the judgment. Sup. Ct. R. 13; see also Bowen, 188 F.3d at 1159.
The California Supreme Court denied review as to Petitioner's resentencing petition on June 8, 2016. (ECF No. 4-1 at 37.) Petitioner did not thereafter file a petition for writ of certiorari in the United States Supreme Court. Therefore, AEDPA's limitations period began to run ninety days later on September 6, 2016,
Respondent fares worse if the limitations period is triggered by § 2244(d)(1)(D). As previously discussed, the Newman court applied § 2244(d)(1)(D) and found that the limitations period for the petitioner's resentencing petition under Proposition 36 began to run on the date the petitioner "discover[ed], or could through due diligence have discovered, that his resentencing petition was denied" by the state court. 2017 WL 9534003, at *6. Following this approach, Petitioner here would have "discovered" that the state court denied his resentencing petition on December 1, 2014, because the court issued its ruling and Petitioner filed a notice of appeal on that day. (ECF Nos. 20-9 at 1; 20-10 at 1.) Therefore, the limitations period pursuant to § 2244(d)(1)(D) would begin on December 1, 2014, and end one year later on December 1, 2015. This is far earlier than the September 6, 2016 start date and the September 6, 2017 end date calculated under § 2244(d)(1)(A).
Neither Respondent nor Petitioner contend that §§ 2244(d)(1)(B) or (C) apply, and the Court sees no basis for their application. In this case, the Court need not determine if § 2244(d)(1)(A) or (D) applies because, as addressed below, neither statutory tolling nor equitable tolling saves this Petition, even using the more generous limitations date arrived at by the application of § 2244(d)(1)(A).
Section 2244(d)(2) provides for statutory tolling during the time when 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). Thus, the "time when a qualifying [state habeas] application is pending shall not be counted toward any period of limitation." Id. AEDPA's statute of limitations is not tolled, however, "from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), overruled on other grounds by Carey v. Saffold, 536 U.S. 214, 225 (2002).
Moreover, statutory tolling is not available if the first state habeas petition is filed after AEDPA's one-year limitations period has expired. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). In other words, a state petition for post-conviction relief that is filed after AEDPA's one-year statute of limitations has expired does not reinitiate the limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Here, Petitioner filed a state habeas corpus petition challenging the denial of his resentencing petition on August 31, 2017, which is six days before AEDPA's one-year statute of limitations under § 2244(d)(1)(A) expired on September 6, 2017. (ECF No. 20-18 at 6.) Thus, because Petitioner filed his state habeas petition before the limitations period expired, Petitioner would be entitled to statutory tolling under § 2244(d)(2) if the petition was a "properly filed" and "qualifying" petition.
Petitioner filed his state habeas corpus petition on August 31, 2017, and the superior court denied his petition eighteen days later on September 18, 2017. (ECF Nos. 20-18 at 6; ECF No. 20-19 at 2.) Thus, Petitioner could, at best, be entitled to eighteen days of statutory tolling.
Before Petitioner filed his state habeas corpus petition, six days remained in AEDPA's one-year limitations period. Eighteen days of tolling would extend the limitations date from September 6, 2017, to September 25, 2017.
AEDPA's one-year statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 649 (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 649 (internal quotation marks omitted) (quoting Pace, 544 U.S. at 418). "The petitioner must show that `the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.'" Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (citing Ramirez, 571 F.3d at 997). "[T]he threshold necessary to trigger equitable tolling [under the AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
Here, Respondent argues that equitable tolling does not apply because "[Petitioner] has not alleged any ground which may entitle him to equitable tolling, and nothing in the record suggests that the failure to timely file this Petition was due to an extraordinary circumstance beyond his control." (ECF No. 19-1 at 7.) Petitioner seems to argue in response that he "was under the belief that . . . AEDPA[`s one-year statute of limitations] only applied to direct appeal issues and collateral attacks on the [underlying conviction]" and not to "resentencing issues as a result of newly enacted legislation." (ECF No. 23 at 2.)
The Court agrees with Respondents and finds that Petitioner is not entitled to any equitable tolling. Although Petitioner is proceeding pro se and may not have known that the AEDPA applies to a federal habeas petition challenging the denial of his resentencing petition, his alleged ignorance of the law is not an extraordinary circumstance beyond his control that warrants equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that "a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"). Petitioner offers no other cognizable argument for why equitable tolling would apply. Moreover, the Court finds that the record does not otherwise reflect any extraordinary circumstance beyond Petitioner's control that would entitle him to equitable tolling. Therefore, because Petitioner fails to show that an extraordinary circumstance caused his failure to timely file, and because he does not make an argument as to diligence in pursuing his rights, Petitioner is not entitled to equitable tolling.
Even when calculating AEDPA's one-year statute of limitations pursuant to § 2244(d)(1)(A), which provides the most lenient possible start date in this case, and factoring in a possible eighteen days of statutory tolling, the instant Petition is untimely. Further, Petitioner has not met his burden to prove that he is entitled to equitable tolling. Thus, Respondent's Motion to Dismiss should be granted.
For the foregoing reasons,
