Rosati v. Kernan

417 F.Supp.2d 1128

Philip Walker ROSATI, aka Mike Trask, aka Phil Campbell, aka Phil Contrell, aka Philip Dimpero, aka Philip Walker, aka Terry Sanders, Petitioner, v. Warden KERNAN, Mule Creek State Prison, Respondent.

No. CV 05-0195-R(RC).

United States District Court, C.D. California.

January 4, 2006.

The petitioner is appearing pro se.

Robert M. Snider, Deputy Attorney General, Office of Attorney General of the State of California, Los Angeles, CA, for the respondent.

ORDER ADOPTING FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

REAL, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Final Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, and has made a de novo determination.

IT IS ORDERED that (1) the Final Report and Recommendation is approved and adopted; (2) the Final Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered dismissing the habeas corpus petition and action as untimely.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Final Report and Recommendation and Judgment by the United States mail on the parties.

JUDGMENT

IT IS ADJUDGED that the Petition for Writ of Habeas Corpus and the action are dismissed as untimely.

FINAL REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

I

On August 7, 2000, in Los Angeles County Superior Court case no. SA028881, a jury convicted petitioner Philip Walker Rosati, aka Mike Trask, aka Phil Campbell, aka Phil Contrell, aka Philip Dimpero, aka Philip Walker, aka Terry Sanders, of one count of first degree murder in violation of California Penal Code ("P.C.") § 187(a), but did not find that the murder was carried out for financial gain within the meaning of P.C. § 190.2(a)(1), and a bifurcated proceeding, the trial court found petitioner had suffered two prior serious felony convictions within the meaning of P.C. § 667(a)(1) and two prior "strikes" within the meaning of California's Three Strikes law, P.C. §§ 667(a)-(i) and 1170.12(a)-(d). Clerk's Transcript ("CT") 2582-85, 3510-12. Petitioner was sentenced to the aggregate term of 80 years to life under the Three Strikes law. CT 3510-12, 3531-32.

Petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed July 31, 2002. Lodgment, nos. 2-3. On September 6, 2002, petitioner filed a petition for review, which was denied on October 16, 2002.¹ Motion to Dismiss ("Motion"), Exh. F.

Subsequently, petitioner filed various motions and applications in the state and federal courts seeking to obtain free copies of various transcripts to assist him in collateral review, and those requests were uniformly denied. See Motion, Exhs. G-L. However, on August 19, 2004,² petitioner filed his first state habeas corpus petition challenging his conviction and sentence in the Los Angeles County Superior Court, which denied the petition on September 3, 2004, with citation to In re Clark, 5 Cal.4th 750, 765, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Motion, Exh. M. On October 6, 2004, petitioner filed a habeas corpus petition challenging his conviction and sentence in the California Court of Appeal, which was denied on October 14, 2004. Id., Exhs. N-0. And finally, on October 29, 2004, petitioner filed a petition for review in the California Supreme Court, which was denied on December 1, 2004. Id., Exh. P.

II

While his conviction was on appeal, petitioner filed his first federal habeas corpus application: Rosati v. Roe, case no. CV 02-0946-HLH(RC) ("Rosati I"), which was dismissed without prejudice on February 4, 2002, due to the pendency of petitioner's appeal in the California Court of Appeal and petitioner's failure to exhaust his state court remedies. Petitioner's second federal habeas corpus application, Rosati v. Knowles, case no. CV 03-7392-R(RC) ("Rosati II"), was dismissed on January 16, 2004, for lack of subject matter jurisdiction due to petitioner's failure to raise a cognizable claim. Motion, Exh. K. Petitioner attempted to appeal the dismissal of Rosati II; however, both this Court and the Ninth Circuit Court of Appeals denied petitioner's request for a certificate of appealability.

On December 18, 2004, petitioner filed the pending petition for writ of habeas corpus challenging his conviction and sentence on multiple grounds, and on July 18, 2005, respondent filed a motion to dismiss the petition, arguing it is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"). Petitioner did not timely file an opposition to the motion to dismiss; however, he filed an opposition (denominated "response") on November 22, 2005.³

DISCUSSION

The AEDPA worked substantial changes to the law of habeas corpus. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997).. Of specific importance to petitioner's claims are the revisions made to 28 U.S.C. § 2244(d), which now provides:

(1) 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; ...

* * * * * *

(2) 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 any period of limitation under this subsection.

28 U.S.C. § 2244(d).

The California Supreme Court denied petitioner's request for review on October 16, 2002. Following the denial of review by the California Supreme Court, a state prisoner has the option of seeking a writ of certiorari from the United States Supreme Court. 28 U.S.C. § 1257. Review by certiorari must be sought within ninety days after denial of the petition for review by the highest state court. 28 U.S.C. § 2101(d); Rules of the Supreme Court of the United States, Rule 13. If the petitioner does not seek certiorari in the Supreme Court, the direct review process is over at the end of the ninety days. Whalem/Hunt v. Early, 233 F.3d 1146, 1147 (9th Cir.2000) (en bane); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Thus, for petitioner, the AEDPA's statute of limitations began to run on January 15, 2003, and expired on January 14, 2004, one year from when his state court decision became final. Ibid. Here, the instant action was not filed until December 18, 2004—almost one year after the statute of limitations had run.

However, this Court must consider whether the statute of limitations was tolled while petitioner's applications for collateral relief were pending. Here, petitioner is not entitled to any statutory tolling. Petitioner's "various motions for transcripts and petitions for writs of mandamus [and review] relating to those motions" did not toll the limitations period. May v. Workman, 339 F.3d 1236, 1237 (10th Cir.2003); see also Burns v. Beck, 349 F.Supp.2d 971, 974 (M.D.N.C.2004) (motion for stenographic transcript is not motion for collateral relief under AEDPA; thus, statute of limitations was not tolled). Moreover, petitioner did not file his first habeas corpus petition until August 19, 2004, some seven months after the statute of limitations expired; therefore, neither it, nor his subsequent state habeas corpus petitions, served to toll or revive the expired limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001), cert. denied, 538 U.S. 949, 123 S.Ct. 1627, 155 L.Ed.2d 492 (2003); Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000).

Further, the filing of petitioner's federal habeas corpus petitions, Rosati I and Rosati II, did not statutorily toll the AEPA's statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct 2120, 2129, 150 L.Ed.2d 251 (2001); Jiminez, 276 F.3d at 482.

Finally, there is no basis for this Court to equitably toll the AEDPA's statute of limitations. A habeas petitioner is entitled to equitable tolling "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (citation and internal quotation marks omitted); Shannon v. Newland, 410 F.3d 1083, 1089-90 (9th Cir.2005); see also Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir.1998) (holding "equitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.' Generally, this will occur when the petitioner has `in some extraordinary way ... been prevented from asserting his or her rights.' The petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient."). The petitioner bears the burden of proving he is entitled to equitable tolling of the statute of limitations. Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir.2005); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). "[T]he prisoner must show that the `extraordinary circumstances' were the but for and...