Opinion
Case No. 11-cv-00877-CW
01-14-2015
DUNG TRAN, Plaintiff, v. JEFF MACOMBER, Defendant.
ORDER GRANTING MOTION TO DISMISS NEW CLAIMS IN AMENDED PETITION (Dkt. No. 20)
This action was stayed and administratively closed so that Petitioner Dung Tran could exhaust state court remedies as to two claims for habeas relief. On January 8, 2014, Petitioner filed a motion to lift the stay and reopen the action together with an amended petition for a writ of habeas corpus. On March 18, 2014, the Court granted the motion and ordered Respondent to show cause why the amended petition should not be granted. On May 19, 2014, Respondent filed a motion to dismiss the new claims in the amended petition as untimely and procedurally defaulted. Petitioner has filed an opposition. For the reasons discussed below, the Court grants the motion to dismiss the new claims.
PROCEDURAL BACKGROUND
Petitioner was convicted by a Santa Clara County jury of first degree murder with personal use of a firearm and was sentenced to twenty-nine years to life in prison. Resp.'s Ex. F, People v. Tran, No. H031840 (Cal. App. Aug. 21, 2009) at 1.
Petitioner appealed and, on August 21, 2009, the California Court of Appeal affirmed the judgment. Id. On November 19, 2009, the California Supreme Court denied review. Resp.'s Ex. G.
From the date on the envelope in which his petition was mailed, it appears that Petitioner constructively filed the petition by delivering it to prison authorities on February 2, 2011, see Doc. no. 1, attachment 1; it was filed on the Court's docket on February 24, 2011. Doc. no. 1. On February 28, 2011, Petitioner filed an amended petition. Doc. no. 3. On April 15, 2011, the Court issued an Order for Respondent to show cause why the amended petition should not be granted and, on July 21, 2011, Respondent filed his answer. Doc. nos. 7, 9. On October 31, 2011, Petitioner filed a motion to stay the proceedings so that he could return to state court and exhaust additional claims, which the Court granted on August 10, 2012. Doc. nos. 12, 13.
From the date on the envelope, Respondent concludes that the date of constructive filing was February 11, 2011. Whether the petition was constructively filed on February 2 or February 11 is not relevant because, based upon the later date of February 11, Respondent acknowledges that the original petition is timely.
On December 12, 2012, Petitioner filed a petition for a writ of habeas corpus in the Santa Clara Superior Court, which was denied on December 17, 2012. Doc. no. 15, Amended Petition, at 51; Doc. no. 20, Ex. 1. On March 21, 2013, Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal, which was denied on August 16, 2013. Doc. no. 15 at 14. On September 12, 2013, Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, which was denied on December 11, 2013. Doc. no. 15 at 14; Doc. no. 20, Ex. 1. On January 8, 2014, Petitioner moved this Court to reopen his case, and filed an amended petition for a writ of habeas corpus, containing two new claims in addition to the three claims raised in his February 28, 2011 amended petition. Doc. nos. 14-15. On March 18, 2014, the Court lifted the stay. Doc. no. 17.
DISCUSSION
Respondent argues that Petitioner's two new claims must be dismissed because they are untimely and procedurally defaulted. Because the Court finds that the new claims are procedurally defaulted, it does not address whether they are untimely. I. Legal Standard
A federal court will not review questions of federal law decided by a state court if the decision rests on a state law ground that is independent of the federal question and adequate to support the judgment. Walker v. Martin, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The adequate and independent state ground doctrine furthers the exhaustion of state court remedies requirement for federal petitions because, without it, habeas petitioners would be able to avoid exhaustion by defaulting their federal claims in state court. Walker, 131 S.Ct. at 1127. To qualify as an adequate procedural ground, a state rule must be firmly established and regularly followed. Id. at 1127-28 (citation omitted). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id.; Coleman, 501 U.S. at 750. II. Analysis
The California Supreme Court issued a one-sentence denial of Petitioner's petition for a writ of habeas corpus with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998), indicating that the petition was untimely. In Walker, the United States Supreme Court held that California's timeliness bar was an adequate procedural rule that bars federal habeas review. Walker, 131 S.Ct. at 1128-31.
Robbins stated that an untimely petition
will be entertained on the merits if the petitioner demonstrates (i) 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; (ii) that the petitioner is actually innocent of the crime or crimes of which he or she was convicted; (iii) that the death penalty was imposed by a sentencing authority that 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; or (iv) that the petitioner was convicted or sentenced under an invalid statute.
In Walker, the parties did not dispute that the timeliness rule was an independent state ground. Walker, 131 S.Ct. at 1127.
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Petitioner acknowledges that California's timeliness rule is an independent ground for relief. However, he argues that the Ninth Circuit, in Townsend v. Knowles, 562 F.3d 1200, 1207 (9th Cir. 2009), held that the timeliness rule is not an adequate procedural rule and, therefore, it cannot bar federal habeas review of his two new claims.
However, all Ninth Circuit authority, including Townsend, questioning the adequacy of California's timeliness bar was superseded by the Supreme Court's holding in Walker, 131 S.Ct. at 1126-27.
Petitioner does not argue that he can overcome the procedural bar by showing cause and prejudice or that failure to consider his claims will result in a fundamental miscarriage of justice. Therefore, his claims are procedurally defaulted and Respondent's motion to dismiss is granted.
CONCLUSION
Based on the above, the Court orders as follows:
1. Respondent's motion to dismiss the two new claims in Petitioner's January 8, 2014 amended petition for a writ of habeas corpus is granted.
2. As stated previously, Respondent has filed an answer to the February 28, 2011 amended petition. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent no later than thirty days from the date of this Order. If he does not do so, the petition will be deemed submitted and ready for decision on the date the Traverse is due.
IT IS SO ORDERED. Dated: January 14, 2015
/s/_________
CLAUDIA WILKEN
United States District Judge
Robbins, 18 Cal. 4th at 780-781.