Opinion
No. 2:06-cv-02840-JKS-EFB.
May 30, 2008
ORDER
Petitioner Romel Valentino White, a state prisoner appearing through counsel, has filed this application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On February 19, 2008, the Magistrate Judge filed Findings and Recommendations, which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty days. Petitioner has filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
White raises two objections to the Findings and Recommendations. First, White asserts that the California "timeliness rule" is not firmly established or consistently applied and he is entitled to statutory tolling. Second, White argues that he is entitled to equitable tolling through October 6, 2005, the date that the Ninth Circuit handed down its decision in Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005). Neither objection is well taken.
His first objection is foreclosed by Pace v. DiGulielmo, 544 U.S. 408, 414 (2005). Pace, addressing what had been intimated in Carey v. Saffold, 536 U.S. 214 (2002), specifically held "[w]hen a post-conviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)." In Bonner, the Ninth Circuit recognized that Pace implicitly overruled the post-remand determination in Saffold v. Carey, 312 F.3d 1031, 1035 (9th Cir. 2002) ( Saffold II), that the initial five-year delay in filing the petition in the lower state court was irrelevant to whether the petition was properly filed under AEDPA, stating "it is clear that the five-year delay in Carey was relevant to our analysis." The California Courts having held that the petitions filed in those courts were untimely under California law, "§ 2244(d)(2) does not allow for tolling." Bonner, 425 F.3d at 1149. The Magistrate Judge was correct on this point.
Reversing and remanding Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2000) ( Saffold I).
White's reliance on King v. Lamarque, 464 F.3d 963 (9th Cir. 2006), and Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), is misplaced. King and Bennett are inapposite as they dealt with the "independent state law grounds" doctrine, not whether a petition was "properly filed" in the state court issue presented in this case, an entirely separate and distinct concept.
White did not raise his second objection, that he is entitled to equitable tolling, in his opposition to the motion to dismiss. Although normally the Court will not address issues raised for the first time in the objections to Findings and Recommendations, the Court has considered this objection and finds it to be without merit.
The case relied on by White, Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), was decided after the matter was submitted for decision and just 20 days before the Magistrate Judge filed his Findings and Recommendations.
White relies by analogy on the recent decision of the Ninth Circuit in Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008). In Harris the Ninth Circuit, noting that Pace overturned existing Ninth Circuit precedent that an untimely Washington State post-conviction petition was properly filed for purposes of tolling the limitation period, Dictado v. Ducharme, 244 F.3d 724, 727 — 28 (9th Cir. 2001), held that, because he relied on existing controlling precedent, Harris was entitled to equitable tolling. White argues that the rationale of Harris ought to be extended to this case. The Court disagrees. The question presented in Harris was: "whether we should strictly apply the Supreme Court's rule announced in Pace on a retroactive basis, or whether we should grant equitable tolling given Harris' reliance on our controlling precedent in Dictado." Harris, 515 F.3d at 1054.
White has not identified the specific controlling decision that he relied on in delaying filing his federal habeas petition. The Court assumes that it was the post-remand Saffold II decision implicitly overruled by Pace.
Harris filed three successive petitions for post-conviction review. The first, filed in February 2001, 267 days after his conviction became final, was ultimately denied by the Washington Supreme Court February 4, 2004. The second petition was filed 29 days later on March 4, 2004, and was held to be untimely, as was his third filed October 11, 2004, ultimately held to be untimely by the Washington Supreme Court on June 1, 2005. Harris filed his habeas petition in the federal court on May 11, 2005. Under Dictado the time his untimely petitions were pending before the Washington courts would be tolled, under Pace, that time was not. Consequently, if time were computed under Dictado, the petition was timely; if computed under Pace, it was not. Thus, the panel, in reversing and remanding, held "[e]quitable principles dictate that we toll AEDPA's statute of limitations in the rare case where a petitioner relies on our legally erroneous holding in determining when to file a federal habeas petition." Harris, 515 F.3d at 1057.
The panel noted that Harris' petition became time-barred the moment Pace was decided. Harris, 515 F3d at 1056.
The facts in this case differ materially. Pace was decided April 27, 2005, 106 days after White's conviction became final (January 11, 2005). Bonner was decided October 6, 2005. White did not file his first petition for post-conviction relief in the California courts until November 16, 2005, 203 days after Pace was decided and 41 days after Bonner. At the time Bonner was decided, White still had 107 days, until January 12, 2006, to file his petition in the federal courts, even if no part of the one-year limitation period were tolled; and 213 days, until April 28, 2006, if the time between the date his conviction became final and the date Pace was decided were tolled under Harris. Thus, White could have filed a protective petition for relief under § 2254 and requested this Court to hold the petition in abeyance pending exhaustion of his claims in the state courts, preserving his claims. See Rhines v. Weber, 544 U.S. 269, 277 — 78 (2005).
The Court is not unmindful of the fact that in Harris the Ninth Circuit did not find the fact that the petitioner could file a protective petition dispositive. Harris, 515 F.3d at 1055.
The fact that Harris could have filed a timely federal habeas petition at a certain point in time is not dispositive. The critical fact here is that Harris relied in good faith on then-binding circuit precedent in making his tactical decision to delay filing a federal habeas petition. Harris' failure to file a timely petition is not the result of oversight, miscalculation or negligence on his part, all of which would preclude the application of equitable tolling. (Citation omitted). Harris was undoubtedly aware of when AEDPA's statute of limitations would expire under our rule in Dictado. Harris presumably chose his tactical strategy precisely because he believed that, under Dictado, he could pursue relief in state courts without jeopardizing his ability to file a federal habeas petition. (Emphasis in the original)
The situation is markedly different in this case. Pace made clear that a petition is not "properly filed" in the state court (1) when untimely under state law and (2) the fact that state law provides for exceptions to its timeliness rule does not prevent a late application from being untimely. Pace, 544 U.S. at 413 — 14. As noted in Bonner, these holdings implicitly overruled Saffold II. At the very least, at the time it was decided, Pace cast serious doubts on the continued viability of Saffold II and that continued reliance on that decision was questionable. While White was undoubtably aware of Saffold II, Pace put White on notice that continued reliance on Saffold II was more likely than not misplaced. The fact that the Ninth Circuit did not "officially" recognize Saffold II was overruled until it handed down its decision in Bonner does not assist White. Unlike Harris, under the facts and circumstances of this case, the Court cannot presume that White chose his tactical strategy based upon a good faith reliance on Saffold II. White waited 13 months after the California Supreme Court affirmed his conviction before filing his first habeas petition in the state courts, which was denied as untimely on January 6, 2006. White did not at any time file a protective federal habeas petition, notwithstanding that at least colorable grounds existed to hold a petition in abeyance. See Pace, 544 U.S. at 416 ("petitioner's reasonable confusion about whether a state court filing would be timely will ordinarily constitute `good cause' for him to file in federal court").
In this case the change in the controlling law was the result of a decision by the Supreme Court construing § 2244(d)(2). "[W]hen [the Supreme] Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law." Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n. 12 (1994). See also Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 90 (1993) ("[W]e hold that this Court's application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision.").
The Court is also not unmindful of the fact that the Ninth Circuit in Bonner remanded the matter to the district court to address the issue of whether Bonner was entitled to equitable tolling. Again, the facts materially differ in this case. Bonner filed his petitions in both the state courts and the federal court before Pace was decided, not, as here, after. Under those facts, Harris could apply, and Bonner may be entitled to equitable tolling. Like Harris, Bonner's petition became untimely the moment Pace was decided. On January 6, 2006, the date his first state court habeas petition was denied as untimely, White was presumably aware of the Bonner decision that an untimely state court filing did not toll the running of the one-year limitation period. Although the Harris rationale might possibly apply to the first filing and toll the running of White's time, excluding those 52 days; unquestionably the time starting running again on January 7, 2006. On that date, assuming that the time was tolled until Pace was decided, 203 days had lapsed, leaving White 162 days within which to file a federal habeas petition. White filed his petition in this Court on December 14, 2006, 341 days later. Thus, at best, giving White the benefit of all periods during which the time may have been equitably tolled, the petition in this Court was filed 179 days late.
White incorrectly states the filing date was November 16, 2005.
Even if the Court were to accept White's argument that the limitation period was tolled until Bonner was decided, October 6, 2005, White cannot prevail. In that situation, without further tolling, White's time to file a federal habeas petition expired October 7, 2006, 68 days before he filed his petition. White does not argue that any of the time after October 6, 2005, was tolled, other than as set forth in his first objection, which was foreclosed by Bonner, if not earlier by Pace.
The Court notes in passing that White attempts to tie Harris to the King/Bennett holdings vis-a-vis the inconsistent application of the California timeliness rule under In re Robbins, 18 Cal.4th 770 (1998), and In re Clark, 5 Cal.4th 750 (1993). White incorrectly suggests that Harris was premised upon the basis that, prior to Pace, Harris was entitled to rely on the previous Ninth Circuit rule that permitted statutory tolling regardless of a state court finding that the petition was untimely under Robbins and Clark. Harris, however, arose out of a Washington, not California, conviction. The prior Ninth Circuit holding addressed in Harris, Dictado, concerned Washington law, not Robbins/ Clark.
Accordingly, IT IS HEREBY ORDERED THAT:
1. The Findings and Recommendations filed February 19, 2008, as supplemented herein, are adopted;
2. Respondent's Motion to Dismiss at Docket No. 10 is GRANTED;
3. Petitioner's application for a writ of habeas corpus is DISMISSED; and
4. The Clerk of the Court to enter final judgment accordingly.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted where the applicant has made "a substantial showing of the denial of a constitutional right," i.e., when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further") (internal quotation marks and citations omitted). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed.R.App.P. 22(b); Ninth Circuit R. 22-1.