Opinion
Case No.: 16cv1941 AJB (NLS)
07-28-2017
HILLERY ALLEN, Petitioner, v. RONALD RACKLEY, Warden, Respondent.
REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [Dkt. No. 13]
On July 29, 2016, Petitioner Hillery Allen, a California inmate proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition). The Petition contains four claims that challenge the constitutionality of Allen's confinement. The first claim is based on the 2014 denial of his resentencing request under California's Three Strikes Reform Act, and the next three grounds challenge his 1998 judgment. Respondent filed a motion to dismiss the petition on these grounds: (1) Claim 1 does not state a federal question; (2) Claims 2 to 4 are successive and untimely and Allen did not get authorization to file a successive petition; and (3) Claims 2 to 4 are late.
Twice Allen moved to extend the time in which to file an opposition. The opposition was ultimately due May 18, 2017. But as of the date of this order no opposition has been filed. For the following reasons, the court recommends that the motion to dismiss be granted and that the Petition be dismissed. Relevant Background.
1. Underlying Conviction.
A trial court found Allen guilty of robbery in September 1998. Lodgment 1 at 1-2. He then admitted that he had two prior serious felony convictions and two prior strike convictions. Lodgment 1 at 2. The prior convictions were based on a 1991 burglary conviction in Illinois and a 1997 California conviction for battery with serious bodily injury. Lodgment 1 at 1-2; Lodgment 2 at 9. The trial court denied Allen's motions to dismiss the strikes and sentenced him to 25 years to life for the robbery under California's Three Strikes Law, five years for each serious felony prior, and a concurrent four-year middle term for battery with serious bodily injury. Lodgment 1 at 2. Allen filed an appeal with three claims. Lodgment 2 at 1-2. The appellate court confirmed the conviction. Lodgment 2. The California Supreme Court denied review. Lodgment 3.
2. Prior Federal and State Habeas Petitions.
Allen filed his first federal habeas petition in this court on February 22, 2001, Allen v. LaMarque, Case No. 01cv300 W (JFS). The court dismissed that petition for failure to pay the filing fee and allege exhaustion. Lodgment 4 at 1. Allen then filed a first amended petition, which the court dismissed on September 7, 2001 for failure to state factual allegations and allege exhaustion. Lodgment 4 at 1-2. Allen then filed a second amended petition (SAP) that included the three claims on appeal plus an additional four claims that were pending in a state habeas petition filed in California Supreme Court. Lodgment 4 at 2; Lodgment 5. Respondent moved to dismiss the SAP. Lodgment 4 at 2. Instead of opposing, Allen asked the court to dismiss the SAP while he exhausted his state judicial remedies. Id. The court dismissed the SAP without prejudice on August 14, 2002. Id.
Meanwhile, on March 20, 2002, the California Supreme Court had denied Allen's state habeas petition with the four new claims. Lodgment 7. On May 8, 2003 Allen filed a second habeas petition in the California Supreme Court that raised the same seven claims included in the federal SAP plus two new claims. Lodgment 8. On January 2, 2004, the California Supreme Court denied the petition as successive and untimely. Lodgment 9.
On June 19, 2004 Allen constructively filed his second federal habeas case, Allen v. Stratton, Case No. 04cv1275 JM (POR). Lodgment 10 at 4. He filed a first amended petition (FAP) on September 7, 2004 and alleged eight claims. Lodgment 11. Respondent moved to dismiss the FAP because it was not filed within the one year statute of limitations. Lodgment 10 at 5. The district court denied the FAP as untimely. Lodgments 10, 12. The Ninth Circuit denied Allen's request for a certificate of appealability. Lodgment 13.
3. Petition Under the Three Strikes Reform Act.
On November 6, 2012 California voters passed the Three Strikes Reform Act, also known as Proposition 36. "Proposition 36 reduced the punishment to be imposed with respect to some third-strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third-strike sentences were imposed with respect to felonies that are neither serious nor violent." People v. Johnson, 61 Cal. 4th 674 (2015). In February 2014 Allen filed a petition in state court to recall his 25 year to life sentence under the Three Strikes Reform Act. Lodgment 20 at 63-90. The superior court denied the resentencing because his commitment offense—robbery—is a violent felony and is thus statutorily ineligible for Prop 36 relief. Lodgment 20 at 61.
Allen filed a second petition to recall his sentence in June 2014. Lodgment 20 at 50-55. In one order issued on July 2, 2014, the state court reiterated that Allen was not eligible for Prop 36 relief given that his commitment offense of robbery is a violent felony. Lodgment 20 at 41. In a separate order also issued on July 2, 2014, the state court said that Allen's 1991 Illinois case was not eligible for relief under the Three Strikes Reform Act because the California court had no jurisdiction over that case, plus, the case resulted in a four year determinate sentence, and convictions with determinate sentences are not eligible under the Act. Lodgment 20 at 56. Allen filed a notice of appeal. Lodgment 20 at 43-45.
Appellate counsel filed a brief under People v. Wende, 25 Cal. 3d 436 (1979). Lodgment 14. Allen filed a supplemental brief alleging five claims. Lodgment 15. The appellate court affirmed the judgment. Lodgment 1. It noted that in 1999 it addressed and rejected Allen's claims that the trial court abused its discretion in declining to dismiss a strike and insufficient evidence claim. Id. It also found "no reasonably arguable appellate issues" in the appeal. Lodgment 1 at 4. Allen petitioned for rehearing, which was denied the same day. Lodgments 16, 17. He filed a petition for review with the California Supreme Court, which summarily denied it. Lodgments 18, 19.
Allen filed this Petition raising these grounds for relief: (1) the state courts erred in denying the petitions for resentencing; (2) the Illinois conviction did not qualify as a prior serious felony conviction; (3) the trial court abused its discretion in denying the motion to dismiss a strike; and (4) the trial court misled the court of appeal by indicating sufficient evidence supported the life sentence imposed. Discussion.
Respondent moves to dismiss the petition on the grounds that Claim 1 is not a claim cognizable on federal habeas, and Claims 2 to 4 are successive claims that were already dismissed in earlier federal petitions.
1. Claim 1: Denial of Resentencing Under Three Strikes Reform Act.
A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas courts may not "reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 68 (1991); see Bradshaw v. Richey, 546 U.S. 74, 76, (2006) ("[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"). Further, the petitioner has the burden to allege specific facts to show that a federal right is implicated. O'Bremski v. Maass, 915 F.2d 418, 422-423 (9th Cir. 1990). If no federal claim is implicated then the petition must be dismissed. Id.
Courts in this circuit have found that challenges to the denial of a resentencing under the Three Strikes Reform Act do not implicate a federal constitutional right. Nelson v. Biter, 33 F.Supp.3d 1173, 1178 (C.D. Cal. 2014) (dismissing a federal habeas petition where the petitioner was denied resentencing under Prop 36 for his robbery conviction because the issue involved purely the application or interpretation of state law); Mitchell v. Soto, 2015 WL 1119683 (E.D. Cal. Mar. 11, 2015) (stating that federal courts in California are bound by the state courts' conclusion that a petitioner is not eligible for resentencing under Prop 36); Tuggle v. Perez, 2016 WL 1377790 (E.D. Cal. Apr. 17, 2016) (citing several cases to support statement that "[n]o federal court has found federal challenges to the Three Strikes Reform Act to be cognizable in federal habeas").
Accordingly, the court recommends that the district judge grant the motion to dismiss with respect to Claim 1 for failure to state a federal claim.
2. Claims 2 to 4: Successive Claims.
When a federal habeas petitioner proceeds to judgment on the merits of claims presented with respect to a particular conviction, any later filed habeas petition attacking that same conviction is considered a "second or successive" petition. See Slack v. McDaniel, 529 U.S. 473, 486-488 (2000). Under such circumstances, a petitioner must get authorization from the court of appeals to file a second or successive petition in the district court. See 28 U.S.C. § 2244(b)(3). To get the authorization, a petitioner must make a prima facie showing that his claim is either based on a new rule of constitutional law made retroactive by the Supreme Court, or on the discovery of new, material evidence. See 28 U.S.C. § 2244(b)(2).
The district judge in Allen v. Stratton, Case No. 04cv1275 JM (POR) dismissed Allen's federal habeas petition regarding the claims in his 1998 conviction for failure to file within the one year statute of limitations. Lodgment 10. Here, in Claims 2 to 4 Allen again seeks relief from that 1998 conviction, specifically that (2) the Illinois conviction did not qualify as a prior serious felony conviction; (3) the trial court abused its discretion in denying the motion to dismiss a strike; and (4) the trial court misled the court of appeal by indicating sufficient evidence supported the life sentence imposed.
The "dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28 U.S.C. § 2244(b)." McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). These claims relate to the 1998 judgment and he raised at least Claims 2 and 3 in his habeas petition filed over a decade earlier. Even if Claim 4 is a new claim, the Petition is still considered successive unless Allen did not have the opportunity to present the claim in his prior petition. See Hill v. Alaska, 297 F.3d 895, 898-899 (9th Cir. 2002). To the extent this Petition contains any new claims, Allen did not explain why he could not allege them in his prior habeas petition, nor did he allege any new facts or applicable law in this Petition. As such, Claims 2 through 4 are second or successive. Id.; see also Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (noting that "'a new petition is 'second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition'"). Because Allen provides no evidence that he got authorization from the Ninth Circuit under § 2244(b)(2) to file a second or successive petition, the court lacks jurisdiction over this Petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (holding that "the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application") (internal quotations omitted).
Accordingly, the court recommends that the district judge grant the motion to dismiss with respect to Claims 2 to 4 as second or successive claims.
3. Claims 2 to 4: Statute of Limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this Petition because it was filed after the effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). AEDPA imposes a one-year period of limitation on petitioners to file a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d). The relevant section reads:
(1) A 1-year period of limitations shall apply to an application for 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.
28 U.S.C. § 2244(d).
(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.
A. Date Conviction Became Final.
Absent any exceptions, the statute of limitations starts the day after the judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). In the context of habeas review, a judgment becomes final when the time for pursuing direct review expires. Id.; Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012). The California Supreme Court denied Allen's petition for review in his first direct appeal on February 16, 2000. Lodgment 3. The judgment became final 90 days later, on May 17, 2000. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The federal habeas statute of limitations would have expired one year later, on May 17, 2001.
There are three statutory exceptions under AEDPA. See 28 U.S.C. § 2244(d)(1)(B)-(D). Here, Allen does not allege any of the exceptions, and none appear to apply: there was no state impediment to Allen seeking further relief; his claims do not rely on a new constitutional right determined by the United States Supreme Court to be retroactive; and the factual predicate for his claims was apparent at the time his conviction was final. See Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (stating the limitations period begins when the petitioner has knowledge of the important facts, not when the petitioner recognizes their legal significance).
Allen constructively filed this Petition on July 26, 2016, more than 15 years after the statute expired. Unless Allen can show he is entitled to statutory or equitable tolling, this Petition is late.
B. Statutory Tolling.
A petitioner's statute of limitations is tolled while a "properly filed" state habeas corpus petition is "pending" in the state court. 28 U.S.C. § 2244(d)(2). 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," provided the petitions are properly filed and pending that entire time. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) overruled on other grounds by Harris v. Carter, 515 F.3d 1051, 1053 (9th Cir. 2008). The time between the denial of one petition and the filing of the next is included in the tolling only if the next petition is timely filed in a higher court. Delhomme v. Ramirez, 340 F.3d 817, 818-19 (9th Cir. 2003); Lee v. Biter, No. SACV 13-13-R CW, 2013 WL 5217603, at *3 (C.D. Cal. Sept. 12, 2013). Statutory tolling is not available for the period a petition is under consideration if it is filed late. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005). / / / / / / / / / / / /
Allen's first state court application for habeas relief was filed on October 17, 2001, which was 17 months after his conviction became final and five months after the limitations period expired. Thus he is not entitled to any statutory tolling.
In any event the filing must be made within what California would consider a "reasonable time." Evans v. Chavis, 546 U.S. 189, 198 (2006). In general, a period of 30 to 60 days is reasonable, while a 6-month unexplained delay will likely be deemed "unreasonable." Id. at 201. --------
C. Equitable Tolling.
A petitioner bears the burden of proving that equitable tolling is appropriate, and must establish that (1) he has been pursuing his rights diligently; and (2) some extraordinary circumstance stood in his way of timely filing a petition. Holland v. Florida, 560 U.S. 631, 649 (2010); Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). The determination of whether a petitioner is entitled to equitable tolling is "highly fact-dependent." Id. Equitable tolling "is unavailable in most cases." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).
For this Petition to be considered timely, Allen bears the burden of proving that he is entitled to approximately 15 years of equitable tolling. This court already determined in 2005 that Allen was not entitled to equitable tolling. Allen argues no reason for why this court should now reject that finding. Nor does he offer any argument to show that he is otherwise entitled to equitable tolling. The court finds equitable tolling unavailable in this case. Order.
For these reasons the court RECOMMENDS that the district judge GRANT the motion to dismiss and that the Petition be dismissed in its entirety, and with prejudice as to Claims 2, 3 and 4. This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). IT IS ORDERED that no later than August 21 , 2017 , 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 must be filed with the court and served on all parties no later than September 1 , 2017 . 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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED. Dated: July 28, 2017
/s/_________
Hon. Nita L. Stormes
United States Magistrate Judge