Opinion
A05-040 CV (JWS), (Docket No. 6).
October 5, 2005
RECOMMENDATION REGARDING MOTION TO DISMISS (§ 2254)
John Turnbull, respondent in this habeas action brought by Loren J. Larson, Jr., moves to dismiss Larson's habeas petition as untimely brought. Doc. No. 6. The motion is opposed by Larson. Doc. No. 9. The parties disagree as to when the one year statutory period of limitations began and whether that time period was tolled for any period of time prior to the filing of state post-conviction proceedings. Upon due consideration of the pleadings and record herein, for the reasons discussed below, the magistrate judge recommends that the motion to dismiss be granted.
Procedural Background
Larson was convicted of two counts of first-degree murder and one count of first-degree burglary. His convictions were affirmed on direct appeal. The Alaska Supreme Court denied Larson's petition for hearing from this decision on May 22, 2000. See, documents filed with respondent's notice of lodging, Doc. No. 7.Larson filed an application for post-conviction relief in the Alaska Superior Court on February 28, 2001. He raised several issues challenging the impartiality of two jurors. Larson submitted in support of his post-conviction application affidavits from several jurors and an alternate juror. The State filed a motion to dismiss, asserting that Alaska R. Evid. 606(b) barred consideration of the affidavits of jurors submitted by Larson. The Alaska Superior Court granted the State's motion to dismiss, and the Alaska Court of Appeals affirmed. See, Larson v. State, 79 P.3d 650 (Alaska App. 2003). The Alaska Supreme Court denied Larson's petition for hearing from this decision on March 2, 2004.
On February 28, 2005, Larson filed a Petition for Writ of Habeas Corpus in federal court. Docket No. 1. Larson's habeas petition raises two claims: (1) the Sixth Amendment right to a fair trial was infringed because the jurors began discussing his case before formal deliberations and were biased against him. He complains that he was precluded by Alaska Evidence Rule 606(b) from presenting evidence to the Alaska Superior Court in support of this claim; and (2) his Fourteenth Amendment right to due process was violated because Alaska does not have a procedure that allows an offender to prove that jurors improperly expressed beliefs of his guilt after being sworn, but before the start of deliberations.
Discussion
A state prisoner has a one year period during which to bring a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). This period begins when the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The triggering event for the one year period is either the completion of review in the United States Supreme Court, or in a case in which certiorari was not sought, the expiration of the time for filing a petition for a writ of certiorari. Clay v. United States, 537 U.S. 522, 527-29, 123 S.Ct. 1072, 1077-78 (2003). The time for Larson to file a Petition for Certiorari for review of his direct appeal expired on August 21, 2000. On that date his conviction became final for purposes of § 2244(d)(1).
A habeas claim based on after-discovered evidence is timely brought when brought within one year of the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. Fielder v. Varner, 379 F.3d 113 (3rd Cir. 2004). Pursuant to 28 U.S.C. § 2244(2)(1)(D), when "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence" post dates the date on which the petitioner's judgment became final under subsection (d)(1)(A) then the limitations period does not begin running until the date of that discovery. Using respondent's calculation of 363 days from March 2, 2004, when the Alaska Supreme Court denied Larson's petition for hearing to February 28, 2005, when the federal habeas petition was docketed, the federal petition was filed less than one year after the conclusion of Larson's State post-conviction relief judgment became final. However, the time after the discovery of the factual predicate for the new claims and the filing of the post-conviction motion in State court must be considered. The time elapsing between the date on which the factual predicate of the claim could have been discovered and the filing of the State post-conviction petition is not tolled. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). The time elapsed between the date of the jurors' affidavits and the filing of Larson's post-conviction motion in State Court is not tolled because it was a time frame when Larson had no petition pending in State court to stop the statute of limitations clock from running. Id. See, i.e., Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851 (8th Cir. 2003).
The date of the jurors' affidavits obtained by Larson's investigator is not readily ascertainable in the record. However, the facts were known to Larson before the Superior Court granted the State's motion to dismiss the petition on December 10, 2001. Appendix B, Docket No. 1.
Larson argues that he had one year from the date the State supreme court terminated review of the new adjudication to file his federal habeas petition with respect to the claims based on newly-discovered evidence. See, petitioner's opposition to motion to dismiss, p. 7. In support of that position, he citesUnited States v. Gadsen, 332 F.3d 224 (4th Cir. 2003). That case in inapposite. In Gadsen, the government argued that since Gadsen had obviously discovered the factual basis for his challenge to the State conviction by the date he filed his petition for post-conviction relief from that conviction, a federal habeas petition was time barred since more than a year had elapsed before he filed his habeas challenge to his federal conviction. To resolve the dispute, the appellate court construed the "facts supporting [Gadsen's] claim." The facts in Gadsen were different from the instant case. The Fourth Circuit reasoned that Gadsen could not have "discovered" the "fact" supporting his habeas claim, namely that his prior conviction had been conclusively vacated, until it became clear that the lower court's decision was the last word on the matter. Id. at 227. Whereas Gadsen was addressing the vacatur of a State court conviction, here no such event is at issue. Gadsen addressed a situation where a defendant had no right during sentencing or on direct appeal to collaterally attack the validity of the prior State conviction used to enhance his federal sentence. In other words, Gadsen had to attack the predicate felony conviction itself, either in State court or through federal habeas review, rather than attacking it indirectly by seeking to obviate the effect it had on the sentencing process. Only after the challenge to the underlying conviction became successful could Gadsen apply for reopening of his federal sentence. The instant case is not a case likeGadsen, influenced by the logic of the Supreme Court's opinion in Daniels v. United States, 532 U.S. 374 (2001).
The First Circuit Court of Appeals reached a contrary decision to that of the Fourth Circuit in Gadsen holding that "[i]t would make little sense for Congress to have used the phrase `facts supporting the claim . . .' if `facts' included a State court set-aside of a prior conviction." See, Brackett v. United States, 270 F.3d 60, 68 (1st Cir. 2001).
In Burger v. Scott. 317 F.3d 1133, 1138 (10th Cir. Okla.) the Tenth Circuit held that § 2244(d)(2) incorporates the concept of exhaustion of State remedies into a tolling provision rather than into a limitation, itself. Id. citing Carey v. Saffold, 536 U.S. 214 (2002) ("ADEPA's limitation period-with its accompanying tolling provision . . . promotes the exhaustion of State remedies while respecting the interest in the finality of the State court judgments.") The Burger court reasoned that Congress did not draft the federal limitations period to begin running only at the end of a particular State's exhaustion process. The court noted that under the statute it is clear that the limitations period starts from the latest of four specific dates, but that the period may be tolled once the State court exhaustion process has begun. See, § 2244(d)(1), (2). InBurger, § 2244(d)(1)(D) was at issue, and the starting of the one-year limitations period commenced on the date Burger learned of the change in his parole reconsideration date.
Equitable tolling should not be used to thwart the intention of Congress in establishing a statute of limitations for habeas claims. It is the intent of Congress that the limitation period runs from the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Congress could have provided that the limitation period runs from the date on which the judgment became final adjudicating a constitutional right in a post-conviction proceeding in State court. The statute is not so drafted.
Under the clear language of the statute, a habeas petitioner has the right to toll the federal limitations period at any time during the year by delivering a properly verified application for post-conviction relief to the State superior court. Larson did so. Larson has presented no extraordinary circumstances compelling the equitable tolling of the limitation period between the date of discovery of the factual predicate for his claims at issue and the filing of his State post-conviction petition. Thus the one-year limitation period applicable to Larson's habeas petition commenced to run when he learned of the facts giving rise to his claims, not when the State court denied him post-conviction relief. In Accord, Burger v. Scott, supra. For the foregoing reasons, the motion to dismiss should be granted. IT IS SO RECOMMENDED.
Pursuant to F.R.Cv.P. 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, Thursday, October 20, 2005. Failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendationUnited States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, Thursday, October 27, 2005. The parties shall otherwise comply with provisions of F.R.Cv.P. 72(b).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).