Beed v. Callahan

CARL EDWARD BEED, Petitioner, v. CHARLES CALLAHAN, Respondent.

Case No. CV 14-9356-KK

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

August 12, 2015

MEMORANDUM AND ORDER SUMMARILY DISMISSING ACTION

Carl Edward Beed ("Petitioner"), a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d), challenging the sentence imposed for his 2010 conviction for attempted robbery in Los Angeles County Superior Court. As set forth below, the Court finds the Petition untimely under the one-year statute of limitations for federal habeas petitions challenging state court convictions. Accordingly, the Petition is denied and this action is dismissed with prejudice.

I.PROCEDURAL HISTORY

On December 22, 2010, Petitioner pleaded no contest to one count of attempted robbery, in violation of California Penal Code section 664 and 221, in Los Angeles County Superior Court. See Lodg. No. 1 at 8.¹ On February 3, 2011, the trial court sentenced Petitioner to seventeen years in state prison. Id.

On April 19, 2011, Petitioner constructively² filed a motion for transcripts of his trial court proceedings in the Los Angeles County Superior Court. Lodg. No. 2. On May 24, 2011, the Superior Court denied the motion. Lodg. No. 3.

On May 29, 2011, Petitioner constructively filed a second motion for transcripts in the Los Angeles County Superior Court. Lodg. No. 4. On September 20, 2011, the Superior Court denied the motion. Lodg. No. 1 at 10.

On December 20, 2011, Petitioner constructively filed a "Petition for Writ of Habeas Corpus and/or Application For Relief From Default re: Notice of Appeal," in the California Court of Appeal. Lodg. No. 5. On January 5, 2012, the Court of Appeal denied the petition. Lodg. No. 6.

On January 12, 2012, Petitioner constructively filed a notice of appeal and a request for certificate of probable cause in the Los Angeles County Superior Court. Lodg. No. 7. On January 31, 2012, the Superior Court denied Petitioner's request for a certificate of probable cause and on February 9, 2012, the Superior Court denied Petitioner's notice of appeal as untimely. Lodg. No. 1 at 11.

On January 23, 2012, Petitioner constructively filed an "Application for Relief from Procedural Bar and For Leave to file Second or Amended Application for Relief from Default and For Permission to File a Belated Notice of Appeal," in the California Court of Appeal. Lodg. No. 8. On February 2, 2012, the Court of Appeal denied the application. Lodg. No. 9.

On March 30, 2012, Petitioner constructively filed a request for a ruling on a previously-filed request for records in the Los Angeles County Superior Court. Lodg. No. 10. On May 17, 2012, the Superior Court denied the request. Lodg. No. 11.

On August 4, 2012, Petitioner constructively filed a third request for transcripts of his trial court proceedings in the Los Angeles County Superior Court. Lodg. No. 1 at 13. On August 13, 2012, the Superior Court denied Petitioner's request. Id.

On October 2, 2012, Petitioner constructively filed a fourth request for transcripts in the Los Angeles County Superior Court. Id. at 14. On October 2, 2012, the Los Angeles County Superior Court granted Petitioner's request for transcripts and sent Petitioner copies of his plea and sentencing transcripts. Id.

On May 30, 2013, Petitioner constructively filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court. Lodg. No. 12. On June 4, 2013, the Superior Court denied the petition. Lodg. No. 13.

On October 31, 2013, Petitioner constructively filed a second petition for a writ of habeas corpus in the Los Angeles County Superior Court. Lodg. No. 14. On November 12, 2013, the Superior Court denied the petition. Lodg. No. 15.

On January 26, 2014, Petitioner constructively filed a petition for a writ of habeas corpus in the California Court of Appeal. Lodg. No. 16. On February 5, 2014, the Court of Appeal denied the petition. Lodg. No. 17.

On March 26, 2014, Petitioner constructively filed a petition for a writ of habeas corpus in the California Supreme Court. Lodg. No. 18. On June 11, 2014, the Supreme Court denied the petition. Lodg. No. 19.

On November 25, 2014, Petitioner constructively filed the instant Petition. (ECF Docket No. ("dkt.") 1). In the Petition, Petitioner asserts three claims in support of his request for habeas relief: (1) breach of Petitioner's plea agreement; (2) Petitioner's plea was not intelligent; and (3) Petitioner's sentence was illegally based on prior convictions sustained in 1982. (Id.).

On December 10, 2014, finding the Petition to be untimely on its face, the Court issued an Order to Show Cause Why This Action Should Not Be Dismissed as Untimely ("OSC"). (Dkt. 6). On December 22, 2014, Petitioner filed a Response to the Court's OSC. (Dkt. 9). On January 13, 2015, the Court issued an order requiring Respondent to file a response to the Petition. (Dkt. 10).

On May 13, 2015, Respondent filed a Motion to Dismiss, contending the Petition is untimely under 28 U.S.C. § 2244(d)(1).³ (Dkt. 20). Petitioner has failed to file a timely opposition to the Motion.

Both parties have consented to the jurisdiction of the undersigned U.S. Magistrate Judge. (Dkt. 2, 19, 22). The matter thus stands submitted and ready for decision.

II.DISCUSSION

The instant Petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court must apply the requirements for habeas relief set forth in AEDPA when reviewing the Petition. Soto v. Ryan, 760 F.3d 947 (9th Cir. 2014) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997)). AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1) ("Section 2244(d)(1)").

A. Petitioner Did Not File His Petition Within AEDPA's One-Year Limitations Period

AEDPA's one-year limitations period commences on the date a petitioner's conviction becomes "final." 28 U.S.C. § 2244(d)(1)(A).⁴ Here, because Petitioner did not file a timely notice of appeal after his conviction and sentencing, Petitioner's conviction became "final" sixty days after the date of his sentencing—the time available for filing a direct appeal under California Rule of Court 8.308—on April 4, 2011. See 28 U.S.C. § 2244(d)(1)(A) (holding that conviction becomes final at "the conclusion of direct review or the expiration of the time for seeking such review"). Consequently, under Section 2244(d)(1)(A), the AEDPA limitations period commenced on April 5, 2011 and lapsed a year lateron April 3, 2012. 28 U.S.C. § 2244(d)(1)(A); Fed. R. Civ. P. 6(a). Petitioner did not constructively file this action until November 25, 2014—over two and a half years after the limitations period elapsed. Hence, the Petition is untimely under Section 2244(d)(1).

B. Statutory Tolling Cannot Render The Petition Timely

AEDPA sets forth a statutory tolling provision which suspends Section 2244(d)(1)'s limitations period for the time during which a "properly filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). Statutory tolling is also available for the period between a lower state court's denial of a post-conviction petition and the filing of a similar petition in a higher court as long as the duration of the "gap" is reasonable or justified under state law. See Carey v. Saffold, 536 U.S. 214, 219-21, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002); see also Evans v. Chavis, 546 U.S. 189, 191-92, 200-01, 126 S. Ct. 846, 163 L. Ed. 2d 684 (2006).

The State of California does not statutorily specify time limits within which an appeal of a post-conviction decision must be made; rather, such appeals are to be filed in "due diligence" within a "reasonable time" with fact-based explanations and justifications for any substantial delay. See Saffold, 536 U.S. at 235 (quoting In re Harris, 5 Cal. 4th 813, 828 n.7, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993)); In re Robbins, 18 Cal. 4th 770, 795 n.16, 77 Cal. Rptr. 2d 153, 959 P.2d 311 (1998). Although the U.S. Supreme Court has suggested a delay that exceeds sixty days would be out of the norm under California law and would require an explanation, the Court has not defined what constitutes a "reasonable time," and has instead held "the federal court must decide whether the filing . . . was made within what California would consider a 'reasonable time.'" Chavis, 546 U.S. at 192, 198 ("[T]he Circuit must itself examine the delay in each case and determine what thestate courts would have held in respect to timeliness."). Accordingly, the Ninth Circuit has held that an unexplained delay "substantially longer than . . . 30 to 60 days" is not reasonable under California law. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (internal quotation marks omitted) (denying statutory tolling for delays of 101 and 115 days). More specifically, the Ninth Circuit has held that unjustified gaps of eighty-one and ninety-one days between the filing of state habeas petitions in California do not toll the AEDPA limitations period. Velasquez v. Kirkland, 639 F.3d 964, 967 (9th Cir. 2011).

Here, as noted in Section I, Petitioner filed twelve different applications, petitions, and motions in various state courts after his conviction and sentencing. Six of these filings were petitions for a writ of habeas corpus, while the other six were miscellaneous filings. The Court separately assesses whether and to what extent each set of filings tolled the AEDPA limitations period.

1. Petitioner's Six Miscellaneous Filings Were Not Properly Filed Applications for Post-Conviction Relief Under 28 U.S.C. § 2244(d)(2).

After his...