Opinion
CASE NO. 08cv1527 BEN (CAB).
March 16, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
I INTRODUCTION
Petitioner Anthony Andre Sharp, a state prisoner proceeding pro se, petitions for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in San Diego County Superior Court for committing a lewd act upon a child under the age of fourteen. [Doc. No. 18.] Respondent submitted a Motion to Dismiss the Petition ("Motion"), asking the Court to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1) and for failing to state grounds for federal habeas relief under 28 U.S.C. § 2254(a). [Doc. No. 28.]
The Honorable Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("Report"), recommending that Respondent's Motion to Dismiss be granted. [Doc. No. 32.] Petitioner filed Objections to the Magistrate Judge's Report. [Doc. 34.] Respondent did not reply. For the reasons stated below, the Court ADOPTS the well-reasoned Report and Recommendation of the Magistrate Judge, GRANTS Respondent's Motion to Dismiss, and DISMISSES the petition WITH PREJUDICE.
II BACKGROUND
On March 3, 1997, Petitioner pleaded guilty to committing a lewd act upon a child under the age of fourteen, in violation of California Penal Code section 288(a). Petitioner also admitted two prior prison convictions and one prior strike conviction. Petitioner stipulated to the upper-term sentence of eighteen years in state prison. Petitioner also acknowledged as part of his plea that he may have to serve 85% of his sentence because it was a violent felony. Petitioner was sentenced to a term of imprisonment of eighteen years and a restitution fine of $2,000. Petitioner did not appeal his conviction.
A. Mailbox Rule
B. State Proceedings
See Houston v. Lack 487 U.S. 266276Huizar v. Carey 273 F.3d 12201223 Houston's see also Stillman v. LaMarque319 F.3d 11991201Stillman319 F.3d at 1201
C. Federal Proceedings
Petitioner constructively filed a petition for writ of habeas corpus in the United States District Court for the Central District of California on June 18, 2008. The case was transferred to this district on August 15, 2008, and dismissed without prejudice on September 12, 2008, for failing to raise cognizable claims. On September 22, 2008, Petitioner constructively filed an amended petition ("Petition"). Respondent filed a Motion to Dismiss with supporting Memorandum of Points and Authorities on November 7, 2008. Respondent contends that the Petition was filed after the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") and, therefore, moves the Court to dismiss the Petition for untimeliness. Respondent further asserts that the Petition should be dismissed for failing to set forth a cognizable federal constitutional claim. On November 21, 2008, Petitioner filed his Opposition to Respondent's Motion. On December 10, 2008, the Magistrate Judge issued a Report and Recommendation, recommending that Petitioner's Petition be dismissed as untimely and for failing to establish a basis for federal habeas relief. On December 31, 2008, Petitioner filed Objections to the Report. Respondent did not reply to Petitioner's Objections.
III DISCUSSION
Under 28 U.S.C. § 636, the Court "shall make a de novo determination of those portions of the [magistrate judge's] report . . . or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Because Petitioner has filed objections, the Court reviews the Report and Recommendation de novo.
A. Ground One
Statute of limitations issues must be resolved before the merits of individual claims. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Because Petitioner filed his habeas petition after the effective date of the AEDPA, its provisions apply. Little v. Crawford, 449 F.3d 1075, 1079 (9th Cir. 2006) ( citing Woodford v. Garceau, 538 U.S. 202, 207 (2003)). Under the AEDPA, a petitioner has one year after the state proceedings become final, plus any time tolled while pursuing state collateral relief, in which to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d). Specifically, the statute provides:
(1) A 1-year period of limitation shall apply to an application for a 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.
(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.Id. It is appropriate to dismiss a federal petition for writ of habeas corpus with prejudice when it was not filed within the AEDPA's one-year statute of limitations. See Jiminez v. Rice, 276 F.3d 478, 483 (9th Cir. 2001); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); see also Day v. McDonough, 547 U.S. 198, 209-11 (2006) (holding that "district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition" after giving parties fair notice and opportunity to present positions).
Petitioner maintains that the classification of his crime as violent, and the corresponding requirement that he serve 85% of his sentence, violated his rights under the United States Constitution. The Supreme Court in Cunningham v. California found California's determinate sentencing law unconstitutional because it permitted trial courts to sentence defendants to the upper term on the basis of facts that had not been proven to a jury beyond a reasonable doubt. 549 U.S. 270 (2007).
Petitioner contends in his Objections that he was not aware that his sentence was illegal or unconstitutional until 2007. (Objections at 1-2.) He, therefore, appears to maintain that 28 U.S.C. § 2244(d)(1)(D) applies, i.e., the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence, rather than section (d)(1)(A), the date on which direct review concluded. Under Petitioner's reading of § 2244(d)(1)(D), the one-year limitation period begins when a prisoner actually understands what legal theories are available to him. However, this interpretation is incorrect. According to the language of the statute, the one-year time limit commences on the date the "factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," not when it was actually discovered by the petitioner. In addition, the trigger in § 2244(d)(1)(D) is the discovery, actual or imputed, of the claim's "factual predicate," not the recognition of the facts' legal significance. In other words, the time begins when the prisoner knows, or through diligence could discover, the salient facts, not when he recognizes the legal significance of those facts. In this case, Petitioner knew, or through diligence could have discovered, the factual predicate of his claim in Ground One of his Petition no later than the date he pleaded guilty and was sentenced.
Therefore, the United States Supreme Court's decision in Cunningham almost ten years after Petitioner was sentenced did not provide Petitioner with the "factual predicate" for his claim of an unconstitutional sentence. Cunningham merely provided additional context for the legal significance of those facts. As such, the one-year limitations period commenced from the "normal" date, i.e., the conclusion of direct review, not the date Cunningham was decided.
Petitioner did not seek a direct appeal in either the California Court of Appeal or the California Supreme Court. Therefore, for purposes of the AEDPA's limitations period, his judgment became final on May 2, 1997, which is the sixtieth day after the time for Petitioner to file a notice of appeal expired. See Cal. R. Ct. 8.308(a) ("[A] notice of appeal . . . must be filed within 60 days after the rendition of the judgment or the making of the order being appealed."); Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 2001) (where petitioner did not appeal her conviction to California Court of Appeal, conviction became final sixty days after she was sentenced). The limitations period then started to run the next day, May 3, 1997, and ended a year later on May 2, 1998. See 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (limitations period begins to run on day after triggering event under Fed.R.Civ.P. 6(a)).
In Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), the Ninth Circuit clarified the Cunningham decision by holding that the decision was compelled by the Supreme Court's prior decision in Blakely v. Washington, 542 U.S. 296 (2004), such that the decision as to whether a petitioner's constitutional rights were violated rests, as a threshold matter, on whether or not his conviction became final before Blakely, not Cunningham, was decided. " Cunningham . . . did not announce a new rule of constitutional law and may be applied retroactively on collateral review." Butler, 528 F.3d at 639. Blakely, on which Petitioner's case depends, however, is not retroactively applied. Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005). In other words, Cunningham cannot be applied retroactively for cases which were final prior to Blakely. Petitioner's conviction became final on May 2, 1997. Blakely was not decided until June 24, 2004. Thus, even if Petitioner could avoid the statute of limitations problem that is fatal to his Petition, Cunningham would not, under Teague v. Lane, 489 U.S. 288 (1989), apply retroactively to his sentence.
As mentioned, Petitioner did not file his original federal petition until June 2008, over ten years after the one-year period would have expired. Thus, unless Petitioner is entitled to either statutory or equitable tolling for that period of time, the Petition is untimely and must be dismissed.
1. Statutory Tolling
The AEDPA provides a statutory tolling provision that suspends the limitations period for the time during which a "properly filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008). An application is "pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220 (2002). The limitations period is not tolled between the time a final decision is issued on direct state appeal and the time a state collateral challenge is filed because there is no case "pending" during that interval. Nino, 183 F.3d at 1006. On collateral review, however, "intervals between a lower court decision and a filing of a new petition in a higher court," when reasonable, fall "within the scope of the statutory word 'pending,'" thus tolling the limitations period. Saffold, 536 U.S. at 221, 223; see also Evans v. Chavis, 546 U.S. 189, 192 (2006).
Furthermore, to qualify for statutory tolling during the time petitioner is pursing collateral review in the state courts, his first state habeas petition must be constructively filed before, no after, the expiration of AEDPA's one-year limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2254 does not permit the reinitiation of the limitations period that has ended before the state petition was filed."). "A state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per curiam).
Petitioner did not file his first state habeas petition until February 2007, almost ten years after the expiration of the limitations period. Consequently, Petitioner is not entitled to statutory tolling for any of his state habeas petitions because they were all filed long after the limitations period expired. See Jiminez, 276 F.3d at 482; Webster, 199 F.3d at 1259. Therefore, the claims raised in Petitioner's Petition are untimely.
2. Equitable Tolling
The Magistrate Judge's Report points out that Petitioner offers no grounds for equitable tolling in either his Petition or his Opposition. Petitioner asserts in his Objections, however, that he is "legally mentally disable[d] or retarded," that he was on psychiatric medication, and that he "has a problem [comprehending] things." (Objections at 2.) A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a Magistrate Judge's report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 612, 621-22 (9th Cir. 2000). Because Petitioner is proceeding pro se, the Court exercises its discretion to consider this claim. See Espinoza-Matthews v. California, 432 F.3d 1021, 1026 n. 4 (9th Cir. 2005).
Equitable tolling applies to the AEDPA's one-year statute of limitations. See Harris v. Carter 515 F.3d 1051, 1054 n. 4 (9th Cir. 2008) (holding that § 2244(d) allows for equitable tolling). "Generally, a litigant seeking equitable tolling bears the burden of establishing tow elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); cf. Harris 515 F.3d at 1054-55(noting previous Ninth Circuit standard defining equitable tolling as "available only when 'extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time'" ( quoting Stillman, 319 F.3d at 1202)). The petitioner "must show that the 'extraordinary circumstances' were the but-for and proximate cause of his untimeliness." Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (per curiam). The determination of whether a petitioner is entitled to equitable tolling is "highly fact-dependent." Espinoza-Matthews, 432 F.3d at 1026.
"Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an 'extraordinary circumstance beyond [his] control,' and the deadline should be equitably tolled." Laws v. LaMarque, 351 F.3d 919, 923 (9th Cir. 2003) (alteration in original). A petitioner's mental illness tolls the limitations period "only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).
Here, other than his conclusory assertion that he is mentally disabled, Petitioner has not presented any evidence to establish that he suffered from a mental illness during the relevant time period of sufficient severity so as to warrant tolling of the limitations period. Because he has failed to show how his mental illness or incompetence actually caused his untimeliness, Petitioner has failed to carry his burden with respect to equitable tolling. Petitioner has not presented sufficient evidence that a mental illness prevented him from managing his affairs and thus from understanding his legal rights and acting upon them. He does not state what mental disorder affects his functioning, its severity, any medication and their effects, or any limitations he experiences as a result of the illness. Moreover, he provides no specifics on the timing of the illness.
In sum, Petitioner's claim of mental incompetence is conclusory and vague. He fails to demonstrate how his mental illness caused him to file his federal petition more than ten years after the limitations period had expired. Petitioner "has made no factual showing of [his] mental incapacity." Lawrence v. Florida, 549 U.S. 327, 337 (2007). Accordingly, Petitioner "has fallen far short of showing 'extraordinary circumstances' necessary to support equitable tolling." Id.
Accordingly, equitable tolling is not available to Petitioner. Petitioner's first ground for relief is, therefore, untimely. Petitioner's objections in this regard are without merit. Accordingly, the Court OVERRULES Petitioner's objections, GRANTS Respondent's motion, and DISMISSES the Petition's first ground for relief WITH PREJUDICE.
B. Ground Two
The Report correctly points out that, to the extent that Petitioner challenges the constitutionality of his sentence in Ground Two, this claim is also untimely. The Report alternatively recommends that the Court dismiss Petitioner's second ground for relief for failing to present a basis for federal habeas relief. As the Report points out, 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 that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner's second ground for relief does not challenge the legality of his custody or seek a determination of his entitlement to an earlier or immediate release. Petitioner's claim concerns the failure of the California Department of Corrections and Rehabilitation to deduct money from Petitioner's prison account to pay his fine, which has no bearing on the fact or duration of his confinement. See Moore v. Nelson, 270 F.3d 789, 792 (9th Cir. 2001). Accordingly, the Court ADOPTS the Report's recommendation and DISMISSES WITH PREJUDICE the Petition's second ground for relief because it does not present a basis for federal habeas relief.
IV CONCLUSION
Petitioner's Petition is untimely. Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report and Recommendation, GRANTS Respondent's Motion to Dismiss, and DISMISSES Petitioner's Petition WITH PREJUDICE. The Clerk shall close the file.
IT IS SO ORDERED.