Opinion
Case No. CV 20-0679-JPR
10-08-2020
RAYFORD TYLER, JR., Petitioner, v. JOSIE GASTELO, Warden, Respondent.
MEMORANDUM DECISION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE
PROCEEDINGS
On January 16, 2020, Petitioner, proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising two claims: he is entitled to resentencing under a change in state law, and California's robbery statutes under which he was convicted are void for vagueness. (Pet. at 5, 25-35.) Respondent moved to dismiss the Petition on April 14, 2020, arguing in part that Petitioner's void-for-vagueness claim was untimely, and Petitioner opposed on June 15. Respondent replied on June 23, 2020, asserting for the first time that the resentencing claim was untimely as well. The Court allowed supplemental briefing, and Petitioner filed supplemental opposition on July 13, 2020. Respondent did not file a supplemental reply. The parties consented to the jurisdiction of the undersigned under 28 U.S.C. § 636(c)(1). For the reasons discussed below, the Petition is untimely and this action is dismissed with prejudice.
Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner constructively files something on the day he gives it to prison authorities for forwarding to the relevant court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). The Court presumes that is the day he signed the document unless there is evidence to the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam) (as amended). Here, although Petitioner signed his Petition on January 14, 2020, it appears he gave it to prison authorities on January 16 because that is when he signed and initialed the back of the envelope in which it was mailed. (See Pet. at 7, 40 (for nonconsecutively paginated documents, the Court uses the pagination provided by its Case Management/Electronic Case Filing system).) The Court therefore deems that to be its constructive filing date. See Kane v. Foulk, No. CV 13-3521-JVS (DTB)., 2014 WL 1370368, at *3 (C.D. Cal. Apr. 4, 2014) (noting that handwritten date next to signature on envelope containing petition was "likely the date that the [p]etition was turned over to prison authorities"). The mailbox rule applies to state habeas petitions as well. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
BACKGROUND
On May 10, 2017, Petitioner pleaded no contest in Los Angeles County Superior Court to three counts of second-degree robbery, admitted a prior serious-felony conviction under California's Three Strikes Law, and received a negotiated sentence of 13 years in state prison. (Lodged Doc. 1 at 11-14.) He did not appeal. See Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for "Tyler" with "Rayford" in Second App. Dist. revealing no appeal filed) (last visited Oct. 7, 2020).
On May 19, 2019, Petitioner constructively filed a habeas petition in the superior court (Lodged Doc. 2 at 1, 18), which it denied in a reasoned order on July 10 (Lodged Doc. 3). Petitioner filed a signed but undated petition in the court of appeal (Lodged Doc. 4 at 1, 6, 18), which filed it on July 29, 2019, and summarily denied it on August 6 (Lodged Doc. 5). He filed the May 19, 2019 petition a second time in the superior court on August 15 (Lodged Doc. 6 at 6, 18); it denied the petition as successive on August 20 (Lodged Doc. 7). On September 26, 2019, the California Supreme Court filed Petitioner's signed but undated petition (Lodged Doc. 8 at 1, 6, 12, 18), and it summarily denied it on December 11 (Lodged Doc. 9).
PETITIONER'S CLAIMS
1. He should be resentenced under California Senate Bill 1393, which in 2019 gave judges discretion to strike or dismiss prior-serious-felony enhancements. (Pet. at 5, 25-30.)
2. California's robbery statutes are void for vagueness. (Id. at 5, 31-40.)
DISCUSSION
I. The Statute-of-Limitation Defense Was Not Forfeited
Despite asserting in her motion to dismiss that Petitioner's second claim was untimely, Respondent argued for the first time in her reply that his first claim was also time barred. (See Mot. to Dismiss at 2-3; Reply at 3-4.) Petitioner contends that by not contesting the first claim's timeliness until her reply, she "waived" the defense. (Suppl. Opp'n at 2.)
"A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve." Wood v. Milyard, 566 U.S. 463, 470 n.4 (2012). Thus, the issue here is whether Respondent has forfeited her timeliness argument.
"Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto." Day v. McDonough, 547 U.S. 198, 202 (2006) (citing Fed. Rs. Civ. P. 8(c), 12(b), & 15(a)); see also R. 5(b), Rules Governing § 2254 Cases in U.S. Dist. Cts. (requiring respondent to plead statute-of-limitation defense in answer). But bars to considering habeas corpus defenses aren't absolute, and exceptions based on important interests such as exhaustion and timeliness have been recognized. Cf. Wood v. Milyard, 566 U.S. 463, 470-73 (2012) (acknowledging exceptions to general rule on forfeiture of affirmative defenses and declining to adopt absolute rule barring court of appeal from sua sponte raising forfeited timeliness defense). Accordingly, a party is prohibited from relying on a statute-of-limitation defense only if it intentionally waives it. Day, 547 U.S. at 202 (holding that when respondent made "no intelligent waiver" of limitation defense, federal court had discretion to "dismiss the petition as untimely under AEDPA's one-year limitation").
When, as here, a respondent's failure to raise timeliness in a motion to dismiss was apparently inadvertent, she is not barred from asserting it in her reply. Id.; see also Harmon v. Adams, No. 2:08-1218-GEB-KJN-P., 2013 WL 5954896, at *11 (E.D. Cal. Nov. 7, 2013) (holding that respondent didn't forfeit statute-of- limitation defense by omitting it from answer because it didn't expressly waive it and asserted it in response to further-briefing order), accepted by 2014 WL 127962 (E.D. Cal. Jan. 14, 2014); Whitehead v. Hedgpeth, No. C-12-3487 EMC, 2013 WL 3967341, at *7 (N.D. Cal. July 31, 2013) (holding that respondent wasn't barred from asserting timeliness defense by not moving to dismiss on that ground and instead raising it in opposition to motion for stay and abeyance). And Petitioner was not deprived of an opportunity to challenge the newly raised argument, as the Court allowed supplemental briefing. See Day, 547 U.S. at 210. Moreover, strong interests are served by applying AEDPA's one-year limitation period. See id. at 205-06 (citing with approval Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000) ("The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.")). Thus, the statute-of-limitation defense was not forfeited.
II. The Petition Is Untimely
Petitioner filed the Petition a year and a half after the limitation period had expired, and he is not entitled to a later trigger date or tolling of any kind. Thus, he is too late.
A. Applicable Law
The Antiterrorism and Effective Death Penalty Act sets forth a one-year limitation period for filing a federal habeas petition and specifies that the period runs from the latest of the following dates:
(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;§ 2244(d)(1). The timeliness of each claim in a habeas petition must be assessed "on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).
(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.
AEDPA includes a statutory tolling provision that suspends the limitation period for the time during which a properly filed application for postconviction or other collateral review is pending in state court. See § 2244(d)(2); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008). In addition to statutory tolling, federal habeas petitions are subject to equitable tolling of the one-year limitation period in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). Determining whether equitable tolling is warranted is a fact-specific inquiry. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (as amended). The petitioner must show that he has been pursuing his rights diligently and that some extraordinary circumstance stood in his way and prevented timely filing. Holland, 560 U.S. at 649.
As to both statutory and equitable tolling, a petitioner bears the burden of demonstrating that AEDPA's limitation period was sufficiently tolled. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (as amended) (statutory tolling), abrogation on other grounds recognized by United States v. Davis, 508 F. App'x 606, 609 (9th Cir. 2013).
B. Analysis
Petitioner pleaded no contest and was convicted on May 10, 2017. (Lodged Doc. 1 at 11-14.) He did not appeal. See Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for "Tyler" with "Rayford" in Second App. Dist. revealing no appeal filed) (last visited Oct. 7, 2020). Thus, his convictions became final on July 9, 2017, 60 days later. See Cal. R. Ct. 8.308(a); cf. Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (state conviction and sentence become final when availability of direct appeal has been exhausted and time for filing petition for writ of certiorari has elapsed or timely filed petition has been denied). Ostensibly, then, AEDPA's one-year statute of limitation began to run on July 10, 2017, and expired on July 9, 2018. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (holding that AEDPA limitation period begins running day after triggering event). Petitioner did not constructively file his Petition until January 16, 2020, more than a year and a half late.
Petitioner could not have filed a petition for writ of certiorari in the U.S. Supreme Court because he did not appeal to the highest state court. See 28 U.S.C. § 1257(a); Sup. Ct. R. 13(1).
To the extent Petitioner contends he is entitled to a later trigger date under § 2244(d)(1)(C) (see Pet. at 25-35; Opp'n at 2), his contention is unfounded. As to his second claim, he argues that the Supreme Court's ruling in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), created "an issue surrounding the 'nature' of the California robbery being '[s]erious' as opposed to '[v]iolent.'" (Pet. at 31-32); see Dimaya, 138 S. Ct. at 1216 (holding that 18 U.S.C. § 16(b) was vague in violation of due process). In United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), and United States v. Garcia-Lopez, 903 F.3d 887 (9th Cir. 2018), also cited by Petitioner (see Pet. at 32), the Ninth Circuit held that the defendants' California robbery convictions did not qualify as violent felonies under the Armed Career Criminal Act, Dixon, 805 F.3d at 1198-99, or crimes of violence under § 16(a), Garcia-Lopez, 903 F.3d at 893. Dixon and Garcia-Lopez are not U.S. Supreme Court cases and are in any event, like Dimaya, not relevant clearly established federal law here because Petitioner's sentence was enhanced under state statutes. Therefore, he is not entitled to a later start of the statute of limitation under § 2244(d)(1)(C). See Gray v. Sherman, No. CV 18-07721-JVS (AS), 2019 WL 469137, at *4 (C.D. Cal. Jan. 9, 2019) (rejecting claim identical to that raised here), accepted by 2019 WL 468802 (C.D. Cal. Feb. 5, 2019), certificate of appealability denied, No. 19-55214, 2019 WL 8059542 (9th Cir. Nov. 8, 2019). And Petitioner does not identify any new U.S. Supreme Court authority giving rise to his first claim. It rests entirely on new state law. Thus, no later trigger date applies for it either.
Petitioner does not argue that he's entitled to a later trigger date under § 2244(d)(1)(B) or (D). Any such claim would fail. See Shannon v. Newland, 410 F.3d 1083, 1087-89 (9th Cir. 2005) (holding that change in state law does not qualify as removal of "impediment" under subsection (B) or "factual predicate" under subsection (D)).
Petitioner is not entitled to statutory tolling because he constructively filed his first state habeas petition on May 19, 2019, well after the AEDPA limitation period ended, on July 9, 2018. (See Lodged Doc. 1 at 16-18); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that habeas petition filed after limitation period had already run resulted in no tolling). Because he is not entitled to any statutory tolling, he must show equitable tolling sufficient to account for the delay in filing the Petition. In neither his opposition nor his supplemental opposition does he argue for equitable tolling, and no basis for it is apparent to the Court. See Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (noting that "equitable tolling will not be available in most cases," and petitioner has burden of showing that extraordinary circumstances justify tolling).
Accordingly, Petitioner is not entitled to a later trigger date or tolling of any kind for either of his claims, and the Petition is untimely by more than a year and a half.
Because the Petition is clearly untimely, the Court does not reach the issue of the cognizability of Petitioner's first claim. (See Mot. to Dismiss at 2-3.)
ORDER
IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice. DATED: 10/8/2020
/s/_________
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE