Opinion
No. C 01-3718 WHA(PR)
September 16, 2002
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc #3)
This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. The petition goes only to the amount of restitution, $10,000, ordered by the sentencing court. The court issued an order to show cause in which it noted a possible statute of limitations issue. See 28 U.S.C. § 2244 (d)(1).
Respondent has filed a motion to dismiss on grounds the petition (1) is barred by the statute of limitations; (2) is a second petition not authorized by the Ninth Circuit see 28 U.S.C. § 2244 (B)(2)-(3); and (3) is a mixed petition. Petitioner has filed an opposition in which he explains why he believes the case is not barred by the statute of limitations. The motion is fully submitted.
STATEMENT
In 1989 petitioner was convicted of murder and sentenced. The sentence included a restitution obligation of $10,000. The sentence was reversed on appeal on an issue other than the restitution obligation. He was resentenced in 1992 to a prison term of twenty-seven years to life on the murder conviction, plus a determinate sentence of three years for conspiracy to commit robbery; the restitution obligation of $10,000 to the victim restitution fund was reimposed.
Petitioner did not appeal from the resentencing, but he filed state habeas petitions challenging the restitution obligation in 1996, 1998, and 2000. This petition was filed on October 2, 2001.
DISCUSSION
1. Statute of limitations
A statute of limitations applicable to habeas petitions challenging a state judgment was imposed for the first time in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996. It is codified at 28 U.S.C. § 2244 (d). Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) The judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244 (d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. Id. § 2244(d)(2).
Regardless of how old the challenged conviction might be, the one-year time limit did not start earlier than April 24, 1996; that is, a prisoner with a conviction finalized before April 24, 1996, like petitioner here, had until April 24, 1997, to file his or her habeas petition. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), cert. denied, 118 S.Ct. 988 (1998) (allowing § 2244(d)'s limitation period to commence before Act's enactment would have an impermissible retroactive effect); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
Petitioner was resentenced in 1992 and did not appeal. Because this petition was not filed until October 2, 2001, it is untimely unless tolling applies or some starting date for the statute of limitations other than expiration of the time for direct review is applicable. Respondent contends that because petitioner is not entitled to any tolling during the period April 24, 1996 — April 24, 1997, this petition was due on or before April 24, 1997, and is untimely.
Petitioner's state collateral proceedings were as follows:
(1) Petitioner filed a habeas petition in the Supreme Court of California on October 25, 1995. It was denied on January 30, 1996. As this petition was prior to the effective date of the AEDPA, it has no impact on calculation of the statute of limitations period. It did not raise the restitution issue.
The references to whether the restitution issue was included in a particular state habeas petition are for completeness; the court does not mean to imply that this is relevant to whether tolling applies. All of the petitions appear to have been directed to the same "judgment" of the state court, and thus all have the potential to toll the statute of limitations. See Tillema v. Long, 253 F.3d 494, 502 (9th Cir. 2001) (period of limitation tolled during pendency of state application challenging the pertinent judgment, even if application does not include claim later asserted in federal habeas petition).
(2) On December 11, 1996, he filed a habeas petition in Mendocino County Superior Court; it was denied on February 27, 1997. This petition raised the restitution issue.
(3) On May 1, 1998, he filed a habeas petition in Mendocino County Superior Court; it was denied on May 15, 1998.
(4) On June 10, 1998, he filed a habeas petition in the California Court of Appeal; it was denied on September 2, 1998. This petition raised the restitution issue.
(5) On June 8, 2000, he filed a habeas petition in Mendocino County Superior Court; it was denied on July 14, 2000.
(6) On October 16, 2000, he filed a habeas petition in the California Court of Appeal; it was denied on October 19, 2000. It appears from the opposition filed by the state that this petition involved the restitution obligation.
(7) On January 26, 2001, he filed a habeas petition in the California Supreme Court; it was denied on April 25, 2001. This petition involved the restitution obligation.
(8) On June 12, 2001, he filed a motion for modification of sentence in Mendocino County Superior Court; it was denied on July 10, 2001. This motion involved the restitution obligation.
Petitioner also filed a previous federal habeas petition on April 9, 1996. It was denied on the merits on October 20, 1997. This petition went to petitioner's conviction and did not raise the restitution issue.
Statutory tolling under 28 U.S.C. § 2244 (d)(2) is not available for the time a federal petition for habeas corpus is pending. Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001). The Supreme Court left open the question whether the statute can be equitably tolled during that time.See id; see also id. at 2130 (Stevens, J., and Souter, J., concurring). The Ninth Circuit, however, has held that equitable tolling is not warranted during the pendency of an federal habeas petition where the petition is subject only to routine processing delays in the district court. Fail v. Hubbard, 272 F.3d 1133, 1135-36 (9th Cir. 2001). In this case the issues presented in petitioner's first federal habeas petition were exhausted and no extraordinary delays occurred. Equitable tolling for the time the first federal habeas petition was pending (which in any event is not requested by petitioner) is not appropriate.
Petitioner had a state habeas petition pending in Mendocino County Superior Court from December 11, 1996, to February 27, 1997. This was during the one-year period he was afforded under Beeler to get his federal petition on file, i.e., it was during the statute of limitations period. Although the respondent does not discuss the impact of this petition on the statute of limitations, the court is unable to see any reason the statute would not be tolled for the time it was pending. The court holds that the running of the statute of limitations was tolled for 78 days, the time this state habeas petition was pending. This extends the deadline for petitioner to file this petition to July 8, 1997. Because this petition was not filed until 2001, however, it was still untimely, in the absence of further tolling or some other consideration.
As noted above, in Beeler the Ninth Circuit held that a prisoner with a conviction finalized before April 24, 1996, like petitioner here, had until April 24, 1997, to file his or her habeas petition. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997).
Petitioner's next state habeas petition was not filed until May 1, 1998, so, this being well after expiration of the federal deadline as extended, it would not appear to provide the additional tolling petitioner needs. However, an application for state collateral review is "pending" in state court "as long as the ordinary state collateral review process is `in continuance' — i.e., `until the completion of' that process." Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002). In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains "pending." Id. In California, this means that the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge, as long as the petitioner did not "unreasonably delay" in seeking review.Id. at 2139-40; see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (an application for collateral review is "pending" in state court for "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.") (citation omitted), cert. denied, 120 S.Ct. 1846 (2000). Carey and Nino contemplated an orderly succession of state petitions, in superior court, the court of appeal, and the supreme court. Here we have a far different situation. Petitioner filed a state habeas petition in superior court in 1996, the petition the court has held tolled the statute of limitations; then, rather than filing another similar petition in the court of appeal, more than year later he instead filed yet another superior court petition. When that petition was denied he filed in the court of appeal, but did not proceed to the supreme court. Roughly a year and nine months later he then filed yet another petition in the superior court, and finally followed this up with petitions in the court of appeals and the supreme court. The question is, under Nino and Carey and this set of facts, is petitioner entitled to tolling for the entire time he was repeatedly raising this issue in the state courts?
In California, the supreme court, intermediate courts of appeal, and superior courts all have original habeas corpus jurisdiction. Nino, 183 F.3d at 1006 n. 2. Although a superior court order denying habeas corpus relief is non-appealable, a state prisoner may file a new habeas corpus petition in the court of appeal. Id. If the court of appeal denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the supreme court. Id. at 1006 n. 3.
Nino concluded that the limitation period "remains tolled during the intervals between the state court's disposition of a state habeas petition and the filing of a petition at the next state appellate level."Nino, 183 F.3d at 1005 (emphasis added). Its reasoning does not extend to where successive petitions were filed at the same appellate level in the state's highest court, see Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (finding that limitation period was not tolled during gap between successive state habeas petitions filed in the state's highest court), or to where there was a time gap between a first and second set of state habeas petitions see Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002) (when calculating tolling period, excluding gap between first set of state habeas petitions (superior court, court of appeal and supreme court) and second set of state habeas petitions (superior court, court of appeal and supreme court)).
The court concludes that he is not. The only way statutory tolling can save this petition is if the time between petitioner's 1996 state petition in superior court and his 1998 petition in superior court is tolled. In Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001), the Ninth Circuit, in calculating tolling periods for a petitioner who had filed successive petitions in the same state court — as petitioner did here — did not toll the times between the successive petitions. Id. at 986. In Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002), the Ninth Circuit did not treat the limitations period as tolled in the gap between as first set of state habeas petitions (superior court, court of appeal and supreme court) and second set of state habeas petitions (superior court, court of appeal and supreme court). The procedure adopted by petitioner here also cannot be said to be "the ordinary state collateral review process" as contemplated in Carey. See Carey, 122 S.Ct. at 2138. From this, the court draws the conclusion that the gap between petitioner's successive habeas petitions filed in the same court is not tolled. The time to file this petition therefore expired on July 8, 1997, long before it was actually filed.
The tolling between these two petitions could be part of tolling of all the time between the July 1996 petition and the denial of his last petition in the California Supreme Court in 2001, of course. But the essential first step is that the time between the two petitions in superior court tolled. That is, if that time cannot be tolled because the 1998 petition was filed in the same court as the 1996 petition, the statute of limitations expired before the 1998 petition was filed.
In his opposition, petitioner asserts that the denials of his state petitions were incorrect under California law. This does not go to when the state petitions were filed — petitioner simply did not pursue his state court remedies in an orderly manner, and that, not the grounds for the state court rulings, is the reason tolling does not save this petition. Petitioner's other contentions going to a time period after the fatal gap between his 1996 and 1998 state petitions are irrelevant. Petitioner also contends that allowing the restitution order to stand would be a miscarriage of justice. The Ninth Circuit has declined to decide whether there is a "fundamental miscarriage of justice" exception to the statute of limitations. Majoy v. Roe, 296 F.3d 770, 777 (9th Cir. 2002). In any event, even if there is an exception to the AEDPA statute of limitation for petitions brought by prisoners whose conviction was a miscarriage of justice, petitioner's claims do not go to his conviction and do not amount to a contention that he is "actually innocent." See id. at 776-77 (describing criteria for "fundamental miscarriage of justice" exception).
Petitioner asserts that he was placed in administrative segregation and was without his legal papers at the time a traverse should have been filed in his 1998 state petition. This is supported by a declaration by the jailhouse lawyer who was helping petitioner. Because this occurred after the federal statute of limitations had already expired, it is irrelevant to the tolling analysis above, does not serve to create a different triggering date for the statute of limitations under 28 U.S.C. § 224 (d)(1)(B), and is not a ground for equitable tolling under Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc).
This petition is barred by the statute of limitation. The petition will be dismissed.
2. Second or successive petition
Respondent also contends that this petition is barred because it is his second federal petition and he has not obtained permission to file it from the Ninth Circuit. His first federal petition, which contained issues going to his conviction, was denied by the Honorable D. Lowell Jensen on October 20, 1997. Respondent alleges, and petitioner does not dispute, that petitioner has not obtained permission to file a second or successive petition from the United States Court of Appeals for the Ninth Circuit.
Before a second or successive petition may be filed in the district court, the petitioner must first obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244 (b)(3)(A). Petitioner has not done this. The petition will be dismissed for this additional reason.
3. Exhaustion
Respondent also asserts that one of petitioner's two issues is not exhausted, making this a mixed petition. In view of the dismissal of the petition on other grounds, this contention is rejected as moot.
CONCLUSION
Respondent's motion to dismiss (doc 3) is GRANTED. The petition is DISMISSED.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
The court having granted respondent's motion to dismiss this petition for a writ of habeas corpus, judgment is hereby entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.