Metts-Montez v. Pallares

1

TRINITY METTS-MONTEZ, Petitioner, v. MICHAEL PALLARES, Respondent.

No. 2:21-cv-0400 JAM KJN P

United States District Court, E.D. California

October 19, 2021

FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

Petitioner a state prisoner, proceeds pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss this action alleging the petition was filed beyond the one-year statute of limitations, and claim three fails to state a cognizable federal claim. As set forth below, the undersigned recommends that the motion be granted.

I. Motion to Dismiss

A. Standards Governing Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991).

Accordingly, the court reviews respondent's motion to dismiss pursuant to its authority under Rule 4.

B. Statute of Limitations

1. Legal Standards

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody, pursuant to the judgment of a State court. The limitation 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.

28 U.S.C. § 2244 (d)(1).^[1]

2. Chronology^[2]

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. Petitioner was convicted in the Sacramento County Superior Court of two counts of assault and five counts each of second-degree robbery and attempted second-degree robbery. (ECF No. 17-1.) A number of sentencing enhancements were found true. On May 15, 2015, petitioner was sentenced to a determinate state prison term of 20 years. (ECF No. 17-1.)

2. Petitioner did not file an appeal.

3. Petitioner did not file a petition for review in the California Supreme Court.

4. On March 15, 2016, petitioner filed a petition for resentencing in the Sacramento County Superior Court. (ECF No. 17-2.) The petition was denied on March 28, 2016. (ECF No. 17-3.)

5. On July 16, 2020, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (ECF No. 17-4.) The petition was denied on September 11, 2020.^[3](ECF No. 17-5.)

6. On September 30, 2020, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (ECF No. 17-6.) The state appellate court denied the petition on October 16, 2020. (ECF No. 17-7.)

7. On November 1, 2020, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (ECF No. 17-8.) The California Supreme Court denied the petition on January 27, 2021. (ECF No. 17-9.)

8. On February 19, 2021, petitioner constructively filed the instant federal petition. See Rule 3(d) of the Federal Rules Governing Section 2254 Cases.

3. Calculation of Limitations Period

For purposes of calculating the limitations period in this case, § 2244(d)(1)(A) applies. Petitioner was sentenced on May 15, 2015. Because petitioner did not file an appeal, the judgment became final sixty days later on July 14, 2015. Cal. R. Ct. 8.38(a); Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012). The limitations period began the next day, July 15, 2015.

Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed.R.Civ.P. 6(a)). Thus, the one-year limitation period commenced on July 15, 2015, and, absent tolling, expired on July 15, 2016.

4. Statutory Tolling

Section 2244(d)(2) provides that “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” the limitations period. 28 U.S.C. § 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules governing filings, including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8 (2000).

An application is “pending” until it has achieved final resolution through the state's postconviction procedures. Carey v. Saffold, 536 U.S. 214, 220 (2002). In California, a state habeas petition remains pending between a lower court's denial of it and the filing of a habeas petition in a higher state court as long as that period is “reasonable” under state law. Evans v. Chavis, 546 U.S. 189, 191-92, 198 (2006); see Carey, 536 U.S. at 222 (unlike most states, which “specify precise time limits, such as 30 or 45 days, within which an appeal must be taken, ” California “applies a general ‘reasonableness' standard” when determining timeliness); Robinson v. Lewis, 9 Cal. 5th 883, 897 (Cal. 2020) (“California courts employ a reasonableness standard.”).

Specifically, in determining reasonableness, California courts consider three factors. Robinson, 9 Cal. 5th at 897. First, “a claim must be presented without substantial delay, ” ‘measured from the time the petitioner . . . knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.” Id. at 898 (internal quotations and citation omitted). Second, if the petition was filed with substantial delay, a petition may still be considered on the merits if the “petitioner can demonstrate good cause for the delay.” Id. Third, even if the petitioner cannot demonstrate good cause for such substantial delay, the petition may be considered on the merits if it falls within four narrow exceptions, only three of which apply to noncapital cases: “(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 he or she was convicted; and (3) that the petitioner was convicted or sentenced under an invalid statute.” Id. (internal quotations and citation omitted). The California Supreme Court found that a safe harbor period of six months was unduly generous, and “might endanger gap tolling in federal court, ” instead adopting a safe harbor period of 120 days as reasonable. Id. at 901. “The petitioner bears the burden to plead and then prove all of the relevant allegations.” Id.

State habeas petitions filed after the one-year statute of limitations expired do not revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

First Interval

From July 15, 2015, until March 15, 2016, the date petitioner filed the first petition in state court, no petition was pending. Thus, petitioner is not entitled to tolling for the initial 244 days that elapsed before the first state court petition was filed. At this point, 121 days of the one year limitations period remained.

Tolling for First State Court Petition

As argued by respondent, petitioner is entitled to tolling for the pendency of the first petition filed in state court. Thus, the limitations period was tolled from March 15, 2016, until March 28, 2016, the date the petition was denied. The limitations period began to run again the next day, March 29, 2016. Absent tolling, the federal statute of limitations period expired on July 28, 2016, or 121 days after the first state court petition was denied.

Tolling for Second State Court Petition

Petitioner did not file the second state court petition until July 16 2020. Because the limitations period previously expired on July 28, 2016, prior to the filing of petitioner's second state habeas petition, and no state court petition was pending at that time, the petition is time-barred. Ferguson, 321 F.3d at 823; Davis v. Johnson, 359 F.Supp.3d 831, 862 (2019) (“[O]nce the federal statute of limitations has run, a newly filed state petition does not reset the clock.”).

Because the limitations period expired years before the filing of the second petition, petitioner is not entitled to tolling for the second or subsequent state court petitions.

Because petitioner unreasonably delayed before filing her second petition, she is not entitled to interval tolling. Over four years and three months (over 51 months) elapsed between March 28, 2016, the date the...