Johnson v. Kaban-Miller

ANGELA MARIE JOHNSON, Petitioner, v. TAMARA KABAN-MILLER, Warden, Respondent.

Case No. CV 13-5748-JEM

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DATED: December 3, 2013

MEMORANDUM OPINION AND ORDER

GRANTING MOTION TO DISMISS AND

DENYING CERTIFICATE OF

APPEALABILITY

INTRODUCTION

On August 2, 2013,¹ Angela Marie Johnson ("Petitioner"), a California state prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. §2254 ("Petition"). Respondent filed a Motion to Dismiss the Petition on September 11, 2013, on the ground that Ground Two in the Petition is unexhausted, and that the Petition is time-barred by the one-year statute of limitation set forth in 28 U.S.C. § 2244(d). On October 17, 2013, Petitioner filed an Opposition. Respondent filed a Reply on October 30, 2013. The Motion to Dismiss is now ready for decision.

For the reasons set forth below, the Petition is dismissed with prejudice as untimely.

STATE COURT PROCEEDINGS

Following a jury trial in Los Angeles County Superior Court case number KA088534, Petitioner was convicted of two counts of second degree robbery (Cal. Penal Code § 211) and one count of petty theft with a prior (Cal. Penal Code § 666). It was also found true that, as to one count of robbery, Petitioner personally used a firearm (Cal. Penal Code § 12022.53(b)), and that Petitioner served three prior prison terms (Cal. Penal Code § 667.5(b)). Petitioner was sentenced to a total of 17 years and eight months in state prison. (Respondent's Lodged Document ("LD") 8.)

On August 25, 2011, the California Court of Appeal issued a reasoned opinion rejecting Petitioner's claims of error on direct review in case number B226242. (LD 7.) Petitioner filed a petition for review in the California Supreme Court ("CSC") in case number S196617. (LD 5-6.) That petition was denied on November 30, 2011. (LD 5.)

On December 27, 2011, the Los Angeles County Superior Court received a habeas corpus petition from Petitioner.² The petition was denied on January 5, 2012. (LD 4 at Attach.)

On February 7, 2012, Petitioner constructively filed a habeas corpus petition in the California Court of Appeal in case number B239076. (LD 3-4.) The petition was denied on February 24, 2012. (LD 3.)

On May 13, 2012, Petitioner constructively filed a habeas corpus petition in the CSC in case number S202545. (LD 1-2.) The petition was denied on August 8, 2012. (LD 1.)

The instant Petition was filed on August 2, 2013. (Petition at 8.)

DISCUSSION

I. The Applicable Statute of Limitations.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus." Wall v. Kholi, 131 S.Ct. 1278, 1283 (2011); Lawrence v. Florida, 549 U.S. 327, 329 (2007); 28 U.S.C. § 2244(d)(1). After the one-year limitations period expires, the prisoner's "ability to challenge the lawfulness of [his] incarceration is permanently foreclosed." Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002).

To determine whether the pending action is timely, it is necessary to determine when AEDPA's limitations period began and ended. Pursuant to 28 U.S.C. § 2244(d)(1)(A)-(D), AEDPA's limitations period begins to run from the latest of: (1) "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;" (2) "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;" (3) "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 (4) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."

A habeas corpus claim can "be timely, even if filed after the one-year time period has expired, when statutory or equitable tolling applies." Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). However, "a court must first determine whether a [claim] was untimely under thestatute itself before it considers whether equitable [or statutory] tolling should be applied. As a matter of logic, where a [claim] is timely filed within the one-year statute of limitation imposed by AEDPA, 28 U.S.C. § 2244(d)(1), then equitable [or statutory] tolling need not be applied. Similarly, equitable tolling need not be applied where a [claim] is timely due to statutory tolling under § 2244(d)(2)." Id. Following this framework, the court begins its analysis with the relevant timeliness inquiry.

II. The Petition Is Facially Untimely.

Under § 2244(d)(1)(A) of the AEDPA, "a federal petition for writ of habeas corpus . . . must be filed within one year after the state court judgment becomes final by the conclusion of direct review or the expiration of the time to seek direct review."³ Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010); 28 U.S.C. § 2244(d)(1)(A).

Here, Petitioner filed a petition for review with the CSC (LD 6), which was denied on November 30, 2011. (LD 5.) Because direct review includes the 90 days during which Petitioner could have filed a petition for writ of certiorari from the United States Supreme Court, Petitioner's judgment became final on February 28, 2012. See 28 U.S.C. § 2244(d)(1)(A) (judgment becomes final either "by the conclusion of direct review or the expiration of the time for seeking such review"); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003, as amended Nov. 3, 2003) ("The period of 'direct review' after which [a] state conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) includes the 90-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, even if the petitioner does not actually file such a petition."); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) ("the process of direct review includes the right to petition [the United States Supreme] Court for a writ of certiorari[;]" therefore, AEDPA's statute of limitations begins to run after the 90-day period within which a petitioner can file a petition for writ of certiorari from the United States Supreme Courtexpires) (internal quotation marks, ellipses and citation omitted). The statute of limitations began to run the next day, on February 29, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). Thus, Petitioner had until February 28, 2013, to file her federal habeas petition. See Smith v. Duncan, 297 F.3d 809, 813 (9th Cir. 2002), abrogation on other grounds recognized by Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007).

The Petition was not filed until August 2, 2013, approximately five months after the statute of limitations had run; therefore, the Petition is facially untimely.

III. Petitioner is Not Entitled To Statutory Tolling.

Under 28 U.S.C. § 2244(d)(2), AEDPA's limitations period is tolled for the time during which a "properly filed" state post conviction application is "pending," which in California can include the intervals between the denial of relief in one court and the filing of a new petition in a higher court. See Carey v. Saffold (Saffold), 536 U.S. 214, 223 (2002). However, the statute of limitations is not tolled between the conviction's finality and the filing of Petitioner's first state habeas petition. See Porter, 620 F.3d at 958 (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000) (same).

As an initial matter, Petitioner's state habeas petitions in the California Superior Court and in the California Court of Appeal were filed and determined prior to the date Petitioner's conviction became final. (LD 3-4.) Absent gap tolling, therefore, these petitions cannot contribute to statutory tolling. See Boyd v. Knipp, 2013 WL 2151581, at *3 (E.D. Cal. 2013); Spencer v. Tremble, 2012 WL 1932646, at *2 (C.D. Cal. 2012).

Moreover, for the following reasons, Petitioner's CSC petition was not "properly filed" under state law, and Petitioner is not entitled to tolling during its pendency, including during the gap between the California Court of Appeal's denial of Petitioner's habeas petition on February 24, 2012, and the constructive filing of Petitioner's habeas petition in the CSC on May 13, 2012. Saffold, 536 U.S. at 223. An untimely state habeas petition is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 412-14 (2005); Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (italics in original). Where, as here, a state court denies a collateral application without a "clear indication" that the application was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans, 546 U.S. at 198; see also Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010), cert. denied, — U.S. —, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") In California, a collateral application is...