Civil No. 05cv1176 H (AJB).
January 27, 2006
Report and Recommendation Regarding Respondent's Motion to Dismiss [Doc. No. 9]
Petitioner, Ruben Williams, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his August 23, 2001 sentencing or matter occurring after the plea in San Diego County Superior Court Case No. SCD 159378. Respondent moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d). Petitioner has filed an opposition. Based upon a review of all of the materials, for the reasons set forth herein, it is recommended that Respondent's Motion to Dismiss be DENIED.
On July 12, 2001, in San Diego County Superior Court case numbers SCD 158743 and SCD 159378, Petitioner pled guilty to one count of false imprisonment by fear of menace or violence (SCD 158743; Cal. Penal Code 237(a)), one count of transportation of more than 28.5 grams of marijuana (SCD 159378; Cal. Health and Safety Code 11360(a)), and admitted three strike-priors in both cases (Cal. Penal Code 667((b)-(i)). (Lodgement 1.) (Clerks's Transcript from Petitioner's direct appeal in state court (hereinafter CT)) at 4-6, 26. On August 23, 2001, the trial court struck the priors in case number SCD 158743 and imposed the mid-term of two years concurrent to a stipulated term of 25 years to life in case number SCD 159378. (CT at 12-13, 27.)
On September 27, 2001, Petitioner filed a notice of appeal from the judgment, challenging the validity of his plea. (Lodgment 1 at 14-15.) On October 1, 2001, the trial court denied Petitioner's request for a certificate of probable cause to challenge the validity of the plea. (Lodgment 1 at 19.) In an order filed October 11, 2001, in case number D038852, the California Court of Appeal, Fourth District, Division One, dismissed the appeal, finding Petitioner's request for a certificate of probable cause had been denied and Petitioner had not complied with former Cal. Rule of Court 31(d). (Lodgment 1 at 20.)
On November 2, 2001, in case number D039020, Petitioner filed an amended notice of appeal, challenging the sentence or matters occurring after the plea. (Lodgment 1 at 21.) On January 22, 2002, Petitioner's appointed counsel filed an opening brief pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal.Rptr. 839 (1979), and Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746 (2000), asking the state Court of Appeal to independently review the record in the case, because counsel had found no arguable issues to present. (Lodgment 2.) On April 11, 2002, Petitioner filed a supplemental brief which the Court of Appeal treated as a petition for writ of habeas corpus, assigning it case number D040064. (Lodgment 3.) On June 12, 2002, the Court of Appeal ordered the cases consolidated and issued an opinion affirming the judgment and denying the habeas petition. (Lodgment 4.) Petitioner did not file a petition for review with the California Supreme Court seeking review of the Court of Appeal's opinion. (Petition at 2.)
In the pending Petition, Petitioner claims he sought further direct review with the California Supreme Court, which denied relief on August 4, 2003, in case number S119076. (Petition at 2.) However, the referenced case number concerns a petition for writ of habeas corpus that Petitioner filed in the California Supreme Court in September of 2003. (Lodgment 9.) Further, as discussed below, the August 4, 2003 date refers to an order filed by the California Court of Appeal, denying a habeas petition that Petitioner filed in that court on May 27, 2003, in case number D042232. (Lodgment 8.)
On April 14, 2003, in case number HC17356, Petitioner filed a petition for writ of habeas corpus in San Diego County Superior Court, seeking habeas relief as to the judgment in case number SCD159378. (Lodgment 5.) The petition states four grounds for relief which essentially distill down to: (1) that the trial court violated Petitioner's right to due process by not ensuring that Petitioner understood the maximum and minimum sentences he faced if he did not accept the plea offer and went to trial; and (2) that Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel, in that trial counsel failed to properly advise Petitioner of the consequences of his plea, i.e., that the stipulated sentence was the "worse type of sentence in a non capital case that anyone could accept as a bargain for his guilty plea." (Lodgment 5 at 3-4.) In an order filed April 21, 2003, the Superior Court denied the habeas petition. (Lodgment 6.) As to the first ground for relief, the Supreme Court found it had no merit. As to the second ground for relief, the court noted that in In re Clark, the California Supreme Court held a defendant is not permitted to assert contentions piecemeal by filing successive pleadings attacking the validity of a judgment. 5 Cal. 4th 750, 767-75, 21 Cal. Rptr. 2d 509 (1993). The court also noted that, in Clark, the California Supreme Court held "that matters that `could have been, but were not raised in a timely appeal from a judgment of conviction are not cognizable on habeas corpus in the absence of special circumstances warranting departure from the rule." (Lodgment 6 at 2 (citing In re Clark, 5 Cal. 4th at 765).) Finally, the court found that, in light of the fact that Petitioner's first ground was without merit, there was no substance to his second ground. (Lodgment 6 at 2-3.)
On May 27, 2003, in case number D042232, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment 7 (printout of the docket sheet in case number D042232, from the California Court of Appeal's website).) The petition raised the same two grounds asserted in the Superior Court habeas petition filed on April 14, 2003 in case number HC17356. (Lodgment 8.) In support of the denial, the Court of Appeal cited Clark and found Petitioner had presented no special circumstances warranting a departure from the rule that issues that could have been, but were not, raised on appeal are not cognizable on habeas review. 5 Cal. 4th at 765. The Court of Appeal also found Petitioner's claims failed on the merits, in that Petitioner's arguments appeared to stem from Rule 11 of the Federal Rules of Criminal Procedure, which does not apply in state criminal matters. (Lodgment 8.)
On September 16, 2003, in case number S119076, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment 9.) The petition raised the same two claims presented in the habeas petitions filed on April 14, 2003. (Lodgment 9 at 3-4.) In an order filed June 9, 2004, the California Supreme Court denied the habeas petition, without comment or citation. (Lodgment 10.)
The petition is confusing, in that the back side of each page is actually a copy of the front side of the page. Respondents have ignored the duplicate pages and referred to the page numbers as though the duplication did not occur.
Under Ninth Circuit law, such "postcard" denials are construed as decisions on the merits. Gaston v. Palmer, 413 F.3d 1030, 1038 (9th Cir. 2003).
Petitioner filed the pending federal Petition on June 6, 2005. (Petition at 1.) It presents the same two claims that Petitioner raised in his habeas petitions filed on April 14, 2003. (Petition at 6-7.)
I. Standard of Review
A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhoades, 416 U.S. 232, 236 (1974).
Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.
DiscussionAs set forth in White v. Klitzkie, issues involving the statute of limitations must be resolved by the Court before the merits of the Petition's individual claims. 281 F.3d 920, 921-22 (9th Cir. 2002). The Respondent moves the Court to dismiss the instant petition on the grounds that it is time-barred under 28 U.S.C. § 2244(d)(1) because it was filed well in excess of the one-year statute of limitations imposed upon the filing of federal habeas petitions by a state prisoner under the AEDPA. Petitioner argues only that he should be entitled to equitable tolling due to extended lockdowns at Centinela State Prison between September 1, 2004 and June 5, 2005, which Petitioner argues prevented him from obtaining access to the law library.
I. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this Petition because it was filed after the Act's date of enactment of April 24, 1996. See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999) ( citing Lindh v. Murphy, 521 U.S. 320, 336-338 (1997). AEDPA amended 28 U.S.C. § 2244 by adding a one-year limitation period for state prisoners to file habeas corpus petitions in federal court. Section 2244 states, in pertinent part, as follows:
(d)(1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations 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.
(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. 28 U.S.C. § 2244(d).II. Equitable Tolling
While the statute of limitations set forth by 28 U.S.C. § 2244(d)(B) does provide for equitable tolling when extraordinary circumstances beyond the prisoner's control make it impossible to file a claim on time, such relief will not be available in most cases. Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288-89 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The threshold necessary to trigger equitable tolling is very high and does not include such garden variety contentions of excusable neglect such as: lack of knowledge of applicable filing deadlines, lack of representation, unfamiliarity with the legal process, or ignorance of legal rights. Barrow v. New Orleans Soc. Sec. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991). "Equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds, Calderon v. United States Dist. Ct. for the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Petitioner bears the burden of showing that equitable tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
In the instant action, it is unclear whether the facts underlying Petitioner's claim are sufficient to rise to the threshold level required to qualify for equitable tolling. Petitioner explains that he was disadvantaged by the "long extended lockdowns that were occurring at Centinela State Prison," which prevented him from using the law library and ultimately from filing a timely petition. (Pet. Opp. Mot. to Dis., p. 2.).
The Court notes that Petitioner was timely with all filings from the period of September 27, 2001 through June 9, 2004. The Court recognizes the Petitioner's history of timeliness and notes that the only untimely period in Petitioner's prosecution of his claims was the period in which Petitioner claims to have been under lockdown conditions that lasted from the denial of Petitioner's writ by the California Supreme Court on June 9, 2004, to the filing of his federal habeas petition on June 6, 2005. However, Petitioner makes only cursory reference to the conditions created by the lockdowns in support of his claim for equitable tolling. Petitioner's statements in his opposition imply that there were a series of lockdowns rather than a single lockdown, which lasted from September 1, 2004 until June 5, 2005. It is unclear from both the petition and from the record whether there were intermediate periods where Petitioner could access the law library. Since the Petitioner has not provided the Court with enough detail or stated the facts with sufficient particularity to enable the Court to determine whether equitable tolling would be warranted in the instant case, the Court is unable to assess the merits of Petitioner's contention that he is entitled to equitable tolling.
Following the Court of Appeal's June 12, 2002 denial of the initial application (Lodgment 4), Petitioner filed a second petition in San Diego County Superior Court on April 14, 2003 (Lodgment 5). After the second petition was denied on April 21, 2003, Petitioner subsequently filed another application with the California Court of Appeal on May 27, 2003 (Lodgment 7), which was denied. On September 16, 2003 Petitioner filed with the California Supreme Court and after it was denied on June 9, 2004, Petitioner filed the instant federal petition on June 6, 2005.
In his Opposition, Petitioner states that he requested an extension of time because of "the long extended lockdowns that were occurring at Centinela State Prison." (p. 2.) He indicates that while the institution was on lockdown, Petitioner was "not allowed to go to the law library." Id. Petitioner concludes that the "lockdowns at Centinela State Prison between 09-01-2004 and 06-05-2005" were circumstances beyond Petitioner's control and ultimately prevented him from making a timely filing. Id.
III. Statutory Tolling Under 28 U.S.C. § 2244(d)(2) 28 U.S.C. § 2244(d)(2) provides that "[t]he 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." ( Emphasis added). Therefore, Petitioner's case hinges on whether or not his various state cases can be characterized as "properly filed" and "pending", thereby tolling the statute of limitations for one full round of state habeas review. California is atypical in that it does not require petitioners to follow a strict court hierarchy when filing appeals. Gaston v. Palmer, 417 F.3d 1030, 1036 (9th Cir. 2005). Under the California Constitution, all three levels of state courts, including Superior Courts, Courts of Appeal and the Supreme Court, have "original jurisdiction in habeas corpus proceedings." Cal. Const. Art. VI, § 10. California requires only that an application for state habeas relief state the underlying facts with particularity and that it be filed without any unjustifiably significant delay. Gaston, 417 F.3d at 1037.
A. "Properly Filed"
Because § 2244(d)(2) only tolls when an application for state collateral review is both properly filed and pending, the Court must examine Petitioner's two state habeas petitions, the first filed on April 11, 2002 with the Court of Appeals and the second filed on April 14, 2003 with the Superior Court, to determine whether each was properly filed within the meaning of the statute. An application is properly filed when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings. . . . [t]he question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. at 1038. Under this definition, the Court finds all of Petitioner's state habeas applications to have been properly filed since each respective court ruled on the merits of the case and none denied Petitioner's collateral state filings on the grounds that they were untimely or improperly filed.
With regard to Petitioner's January 22, 2002 challenge to sentence and his April 11, 2002 supplemental brief that was ultimately characterized as a writ for habeas corpus and consolidated with the January 22, 2002 challenge, the court affirmed the judgment and denied the habeas petition. (Lodgment 4.) When Petitioner filed his April 14, 2003 writ of habeas corpus, the San Diego Superior Court held that the first ground for relief lacked merit and that the second ground violated California's prohibition against piecemeal successive pleadings. (Lodgment 5.)
In response to Williams' May 27, 2003 habeas petition, the California Court of Appeal ruled that no special circumstances had been presented to warrant a departure from California's prohibition against piecemeal pleadings and found that Petitioner's claims failed on the merits. (Lodgment 8.) On June 9, 2004, the California Supreme Court responded to Petitioner's September 16, 2003 writ of habeas corpus with a decision denying the petition without comment or citation. In all of the aforementioned decisions there was no denial based on a holding that the application was untimely or improperly filed.
The Court does, however, note that California has a general prohibition against using a habeas petition as a substitute for appeal. In re Clark v. Sup. Ct. of Cal., 5 Cal. 4th 750, 765 (Cal. 1993). Additionally, California has a general rule that a habeas petitioner must raise all known claims in a single application to a given court and that a petitioner is forbidden from adding claims as he or she moves through the judicial system. Gaston, 417 F.3d at 1037. If matters could have been raised on a timely appeal from a judgement of conviction, and the petitioner fails to do so, under California law those matters are no longer cognizable on habeas corpus unless special circumstances warrant an exception. Id.; In re Clark, 5 Cal. 4th at 767-75 (holding that in California a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the unfavorable judgment). Under California law, the prohibition against "piecemeal" presentation of the petitioner's claims can only be overcome if the petitioner is able to "allege facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction and/or sentence." Gaston, 417 F.3d at 1037. The California Supreme Court explained that a fundamental miscarriage of justice will have occurred in any proceeding in which it can be demonstrated:
1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; 2) that the petitioner is actually innocent of the crime or crimes of which the petitioner was convicted; 3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death; 4) that the petitioner was convicted or sentenced under an invalid statute. Id.
Petitioner has clearly not met this burden, however, since the relevant inquiry under the Ninth Circuit law asks only (1) whether the petition was properly filed and timely and (2) whether the claims therein are pending, the Court does not address the merits off the denial of the petition as being successive. As result, Petitioner's habeas application, will evade the State Court's barrier to successive petitioner set forth in In re Clark, if it is found to contain pending claims that are both timely and properly filed.
In Casey v. Saffold, the Supreme Court stated that pending means "through the period of continuance . . . of' "until the . . . completion of." 536 U.S. 214, 219 (2002). Accordingly, the Court concluded that "an application is pending as long as the ordinary state collateral review process is `in continuance' — i.e., `until the completion' of that process. In other words, until the application has achieved final resolution through the state's post-conviction procedures, by definition it remains `pending.'" Id. at 219-20 ( quotations in original). A petitioner "is entitled to interval tolling for one full round of state habeas review even if he initiates a new round of review before the first round is complete." Gaston, 417 F.3d at 1042 ( emphasis added).
Under § 2244(d)(a), it is relatively easy to ascertain that the AEDPA's statute of limitations is tolled during the periods between the filing of Petitioner's applications in the California courts and the disposition of those applications. Gaston, 417 F.3d at 1040; See Saffold, 536 U.S. at 218. What is more difficult to ascertain is whether Williams is entitled to tolling of the intervals between the disposition of one application and the filing of a subsequent one. The Supreme Court has concluded that habeas petitioners in "typical `appeal' States" are entitled to "interval" tolling under § 2244(d)(2). Gaston, 417 F.3d at 1041, quoting Duncan v. Walker, 533 U.S. 167, 178 (2001). More specifically, the statute is tolled for the time "during the interval between a lower court's entry of judgment and the timely filing of a notice of appeal (or petition for review) in the next court." Gaston, 417 F.3d at 1041, quoting Walker, 533 U.S. at 178. This "interval tolling" also applies to "habeas petitioners proceeding through California's `original writ' system . . ." Gaston, 417 F.3d at 1041, quoting Saffold, 536 U.S. at 223. Therefore, the statute of limitations under the AEDPA is tolled for the entire time that "a state prisoner is attempting, through proper use of state court procedures, to exhaust available remedies in state court with regard to a particular post-conviction application." Gaston, 417 F.3d at 1041, quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999). However, because all three levels of California state courts have original jurisdiction in habeas corpus proceedings, a California petitioner does not have to move through the California courts in an orderly hierarchical fashion. Gaston, 417 F.3d at 1042. For those applicants in California who follow a more complicated or circuitous route, the Ninth Circuit has developed a framework for applying the AEDPA's statutory rules. Id. Under this system, the timeliness of a California state habeas application depends entirely on California law, making the relevant inquiry whether the California courts have dismissed an application as untimely. Id. ( emphasis added).
Superior Courts, Courts of Appeal and the Supreme Court.
However, the Ninth Circuit stated in Welch that the definition of "pending" does not include abandoned claims. 350 F.3d 1083. A state habeas petitioner may be denied interval tolling if he or she abandons the claims set forth in the first application when filing a subsequent application for state habeas relief. Id. citing Welch v. Carey, 350 F.3d 1079, 1083-84 (9th Cir. 2003) ( en banc) (holding that where applicant filed first habeas application asserting ineffective assistance of counsel in Superior Court, the subsequent application filed four years later in the California Supreme Court alleging new and different grounds for relief than those previously advanced resulted in the "abandonment" of the first set of claims and the application was not pending for the purposes of § 2244(d)(2) and therefore not entitled to interval tolling).
With this framework in mind, the Court will review Williams' two state habeas petitions. Respondents argue that Petitioner's statute of limitations began running on July 22, 2002, when the California Supreme Court's June 12, 2002 opinion affirming judgment and denial of the first habeas petition became final. Respondents allege that the statute of limitations didn't begin to toll until 265 days later, on April 14, 2003, when Petitioner filed his first state habeas petition with the San Diego County Superior Court. (Case No. HC17356, Lodgment 5.) Respondent then calculates that the statute again started running on June 10, 2004, the day after the California Supreme Court denied Petitioner's writ, and continued to run for 465 days until June 5, 2005, the day before the instant action was filed. Respondent argues that these periods in which the clock was running total 700 days, which exceeds the statute of limitations of one year, or 365 days, ultimately precluding Petitioner from being able to file a petition in federal court. The Court does not agree.
In California, a conviction becomes final 40 days after the state court of appeal files its opinion. Cal. Rules of Court, rules 24(a), 28(b), 45(a).
On April 11, 2002, Petitioner filed a supplement brief, which the Court of Appeal treated as a writ of habeas corpus. The petition raised two relevant grounds (1) that the three strikes law violates the Fourteenth and Eighth Amendment because it amounts to cruel and unusual punishment and (2) that Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel for a variety of reasons, which were ultimately denied in the court's June 12, 2002 holding. (Lodgment 4.) Petitioner did not appeal this decision.
On April 14, 2003, Petitioner filed a writ of habeas corpus in San Diego Superior Court raising two grounds for relief: 1) that the trial court violated Petitioner's right to due process by not ensuring that Petitioner understood the maximum and minimum sentences he faced if he did not accept the plea offer and went to trial; and 2) Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel, in that trial counsel failed to properly advise Petitioner of the consequences of his plea. (Lodgment 5.) Claim two in each of the petitions was pending as defined by the Supreme Court. Saffold. 536 U.S. at 219. The fact that the second petition contained an additional claim does not affect or untoll either petition as Petitioner is entitled to interval tolling for one full round of state habeas review. Gaston, 417 F.3d at 1042. Under Ninth Circuit law, "[t]he period of time that an application for post-conviction review is pending is not affected or `untolled' merely because a petitioner files additional or overlapping petitions before it is complete." Gaston, 417 F.3d at 1042 ( emphasis added).
Petition filed April, 14, 2003 with Superior Court.
While both the Superior Court and the Court of Appeal cited the piecemeal nature of Petitioner's second writ filed on April 14, 2003, the relevant inquiry for purposes of determining "pendency" is (1) whether Petitioner had the same "pending" claims in both the petition filed on April 11, 2002 with the Court of Appeals and the petition filed on April 21, 2003 with the Superior Court and (2) whether of these petitions were denied on grounds of timeliness. Since one claim was pending in both petitions and none of these applications were denied by the California courts as untimely or improperly filed, Williams is entitled to tolling for the duration of his first full round of state habeas review. As such, the Court finds that the ADEPA's statute of limitations was tolled until June 9, 2004, the date his second petition was denied by the California Supreme Court. Williams filed his federal habeas petition on June 6, 2005, three days before the limitations period was set to expire and Williams petition is therefore timely.
For the reasons set forth above, it is recommended that Respondent's Motion to Dismiss be DENIED as Petitioner filed his Federal Petition for Writ of Habeas Corpus prior to the expiration of the one year statute of limitations set forth in 28 U.S.C. § 2244(d)(2).
This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1) (1988). Any party may file written objections with the court and serve a copy on all parties by February 10, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by February 28, 2006. 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.