Free Motion to Dismiss - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 KYLE NIKI SHAFFER, State Bar No. 122374 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2226 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 TO PETITIONER: PLEASE TAKE NOTICE that Respondent1/ hereby moves the Court for an v. A. HEDGPETH, Warden, Respondent. ROBY TAYLOR CHAPPEL, Petitioner, 08cv1291 DMS (BLM) NOTICE OF MOTION & MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS Oral Argument Not Requested

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

22 order dismissing the Petition for Writ of Habeas Corpus because it is untimely, as the Petition was 23 24 25 26 27 28 1. Petitioner has improperly named the California Attorney General as a respondent. The Attorney General is not a proper party to this suit, and should be dismissed as a named respondent. Where a habeas corpus petitioner is in custody pursuant to a challenged state-court judgment, the proper responding party is the state officer having custody of the applicant. Rules Governing Section 2254 Cases in the United States District Courts, 2(a). This is the only person who can produce "the body" of the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Because Petitioner is already incarcerated for the judgment he challenges, the warden is the proper Respondent, and the California Attorney General should be dismissed as a named respondent. Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir. 1998).
MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS Case No. 08cv1291 DMS (BLM)

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1 filed after the expiration of the statute of limitations pursuant to 28 U.S.C. § 2244(d). The Motion 2 to Dismiss is based on this Notice, the accompanying Memorandum of Points and Authorities and 3 lodgments, and on the pleadings and documents currently on file in this action, as well as any further 4 records which may be filed or lodged in this case. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS Case No. 08cv1291 DMS (BLM)
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Dated: September 5, 2008. Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General DANIEL ROGERS Deputy Attorney General

s/KYLE NIKI SHAFFER KYLE NIKI SHAFFER Deputy Attorney General Attorneys for Respondent

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 KYLE NIKI SHAFFER, State Bar No. 122374 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2226 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 INTRODUCTION 22 23 This Court's July 24, 2008 Order directed Respondent to file a motion to dismiss the v. A. HEDGPETH, Warden, Oral Argument Not Requested Respondent. ROBY TAYLOR CHAPPEL, Petitioner, 08cv1291 DMS (BLM) MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

24 Petition for Writ of Habeas Corpus "[i]f Respondent contends the Petition can be decided without 25 the Court reaching the merits of Petitioner's claims (e.g., because . . . the Petition is barred by the 26 statute of limitations, . . ."). In this Motion to Dismiss, Respondent contends that the pending 27 Petition must be dismissed because it is untimely, as it was filed after the expiration of the statute 28 of limitations pursuant to 28 U.S.C. § 2244(d).
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case No. 08cv1291 DMS (BLM)

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The judgment in this case became final no later than January 29, 1995. Petitioner

2 thereafter had until April 26, 1997, in which to file a timely federal petition. Petitioner did not file 3 the instant habeas Petition until July 17, 2008, over eleven years after the expiration of the applicable 4 statute of limitations. Respondent, accordingly, respectfully requests that this Court dismiss the 5 Petition for Writ of Habeas Corpus with prejudice pursuant to 28 U.S.C. § 2244(d). 6 PROCEDURAL & FACTUAL BACKGROUND 7 8 In 1992, Petitioner pled guilty to the crime of attempted murder in violation of

9 California Penal Code section 187, subdivision (a), in San Diego County Superior Court case 10 number CR 140547. On June 9, 1992, Petitioner was sentenced to the nine-year upper term for 11 this offense. Additionally, Petitioner was sentenced to a one-year enhancement for the use of 12 a deadly weapon in the commission of a felony (Cal. Penal Code § 12022(b)), a three-year 13 enhancement for inflicting great bodily injury on his victim (Cal. Penal Code § 12022.7), and a 14 five-year enhancement for each of two violent felony priors (Cal. Penal Code § 667(a)); therefore, 15 an aggregate term of 23 years was imposed. (Pet. at p.2; see also Exs. A, F-1; Lodgment 2, at 1.) 16 Petitioner did not appeal the judgment. The judgment in this case therefore became final on 17 August 9, 1992. 18 While he was incarcerated, Petitioner attempted to escape from prison. He was

19 subsequently charged with assault with a deadly weapon upon a peace officer (Cal. Penal Code 20 § 245(c)), kidnapping (Cal. Penal Code § 207(a)), and escape by force (Cal. Penal Code § 4532(b)). 21 Petitioner eventually pled guilty to these charges in San Diego County Superior Court case number 22 126340. On November 30, 1994, he was sentenced to an aggregate term of fourteen years. (Pet., 23 Ex. C.) This term was statutorily mandated to be imposed consecutively to the term of imprison24 ment Petitioner was already serving at the time of his attempted escape. (Cal. Penal Code 25 § 4532(b)). Petitioner did not appeal the judgment. The judgment in this case therefore became 26 final no later than January 29, 1995. Petitioner took no further action for over eight years. 27 /// 28 ///
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On June 1, 2007, Petitioner filed a petition for writ of habeas corpus in the San Diego

2 County Superior Court in case number HC18962. (Lodgment 1.) The petition was denied on 3 July 16, 2007. (Lodgment 2; see also Pet., Ex. F-1.) 4 On September 25, 2007, Petitioner filed a petition for writ of habeas corpus in the

5 California Court of Appeal, Fourth Appellate District, Division One, in case number D051699. 6 (Lodgment 3.) The state appellate court denied the petition on January 22, 2008. (Lodgment 4.) 7 On November 9, 2007, Petitioner filed a petition for writ of habeas corpus in the California

8 Supreme Court in case number S158063. (Lodgment 5.) The Court denied the petition on May 14, 9 2008, without citation or comment. (Lodgment 6.) On April 1, 2008, Petitioner filed another 10 petition for writ of habeas corpus in the California Supreme Court in case number S162222. 11 (Lodgment 7.) To date, the Court has made no ruling upon that petition. 12 13 14 15 16 17 18 Because the present Petition was filed after April 24, 1996, it is governed by the THE PETITION MUST BE DISMISSED BECAUSE IT WAS NOT FILED WITHIN THE PERIOD OF LIMITATIONS SET FORTH IN 28 U.S.C. § 2244(d) ARGUMENT Petitioner filed the instant Petition in this Court on July 17, 2008.

19 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Smith v. Robbins, 528 U.S. 259, 268 20 n.3, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000); see also Furman v. Wood, 190 F.3d 1002, 1004 21 (9th Cir. 1999), citing Lindh v. Murphy, 521 U.S. 320, 336-338, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 22 481 (1997). As amended by AEDPA, 28 U.S.C. § 2244(d) provides: 23 24 25 26 27 28
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case No. 08cv1291 DMS (BLM)

(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;

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(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. (2) The time during which a properly filed application for State postconviction 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. Following his guilty plea, Petitioner's sentence was originally imposed on June 9, 1992.

9 (Pet., Ex. A.) Following his attempted escape from prison, Petitioner again pled guilty to another 10 set of charges and was sentenced on November 30, 1994. (Pet., Ex. C.) Petitioner did not appeal 11 either judgment. Petitioner's conviction and judgment became final 60 days after entry in both cases, 12 or on August 9, 1992, in the first case and January 29, 1995, in the second (escape) case. Cal. Ct. R., 13 8.308(a) (formerly 31(d)); see also Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); Lewis 14 v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D.Cal. 2001). 15 Because the judgments in this case became final prior to the effective date of the applicable

16 statute of limitations, Petitioner had until April 23, 1997, to file his federal habeas corpus petition 17 in order for it to be timely under § 2244(d)(1)(A). Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 18 2002); Calderon v. U.S.D.C. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), reversed on other 19 grounds, Calderon v. U.S.D.C. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Petitioner did not 20 file the instant habeas Petition until July 17, 2008, over eight years after the expiration of the 21 applicable statute of limitations. 22 Because Petitioner did not file the presently pending federal Petition until well over one

23 year after the statute of limitations had expired, the issue raised by the present Petition is whether 24 Petitioner is entitled to a later filing date than April 23, 1997, based on the provisions of 25 § 2244(d)(1)(B)-(D), whether Petitioner is entitled to statutory tolling under § 2244(d)(2), and 26 whether Petitioner is entitled to equitable tolling. Petitioner is not entitled to a limitation period later 27 than the conclusion of the direct-review process based on the provisions of § 2244(d)(1)(B)-(D): 28 There was no state impediment to Petitioner filing the present habeas Petition earlier; Petitioner's
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1 claims do not depend on a new or recently recognized constitutional right; and the factual predicates 2 for Petitioner's claims were known by the time judgment was imposed. 3 Petitioner is not entitled to statutory tolling, pursuant to § 2244(d)(2). Petitioner did not

4 begin to seek collateral relief in this case until June 1, 2007, over ten years after the statute of 5 limitations had already expired in 1997. Although Petitioner did eventually pursue repeated and 6 numerous collateral actions in the state courts (Lodgments 1-7), statutory tolling can not revive the 7 limitations period; it can only serve to pause a clock that has not already run. Patterson v. Stewart, 8 251 F.3d 1243 (9th Cir. 2001); Green v. White, 223 F.3d 1001 (9th Cir. 2000). Once the statute has 9 run, a collateral action cannot revive it. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). 10 Thus, none of Petitioner's collateral filings had any effect on the AEDPA statute of limitations, 11 because the limitations period had already expired before Petitioner commenced seeking collateral 12 relief in the state courts. Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Moreover, it is 13 noteworthy that at least one state court specifically denied Petitioner's collateral filing as being 14 untimely under California state law. (Lodgment 4, at 2.) Untimely state petitions are improperly 15 filed and do not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 16 1812, 161 L. Ed. 2d 669 (2005); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). 17 Petitioner is not entitled to equitable tolling in this case. Petitioner has made no explicit

18 claim for equitable tolling. Nor does it appear that he reasonably can assert any, let alone sufficient, 19 equitable tolling to overcome the period of delay that preceded the filing of the current Petition. 20 AEDPA's limitations provision is subject to equitable tolling when "extraordinary

21 circumstances" beyond a prisoner's control prevented him or her from filing a petition on time. 22 Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). A petitioner bears the 23 burden of showing that equitable tolling is appropriate. Gaston v. Palmer, 387 F.3d 1004, 1008 24 (9th Cir. 2004); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). In order for equitable tolling 25 to apply, a petitioner must demonstrate both that he has been pursuing his rights diligently, and 26 that some extraordinary circumstance stood in the way of his filing a timely petition. Rasberry v. 27 Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006), citing Pace v. DiGuglielmo, 544 U.S. 408. 28 ///
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A petitioner must establish that extraordinary circumstances caused the delay in filing

2 the federal petition. Gaston v. Palmer, 387 F.3d at 1008. Petitioner has not met this burden. 3 Equitable tolling is appropriate only in cases where external forces, rather than a petitioner's lack 4 of diligence, account for failure to file a timely claim. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 5 1999). Diligence may be measured by how quickly a petitioner pursued state remedies. Guillory 6 v. Roe, 329 F.3d 1015, 1017 (9th Cir. 2003) (examining how quickly a petitioner returned to state 7 courts to exhaust claims and how quickly petitioner returned to federal court after state exhaustion). 8 Petitioner's lack of diligence bars the application of equitable tolling in this case. 9 One item warrants the Court's attention. On page seven of the supplemental briefing

10 attached to his Petition, Petitioner asserts that his claims are timely filed because he did not learn 11 that the term imposed for his attempted escape from prison and related offenses was to be served 12 consecutively to his originally imposed term until 2007. (Pet. Supp., 7.) However, as noted by the 13 state appellate court, Petitioner knew, or should have known, that his sentence for the attempted 14 escape and related offenses was ordered to be served consecutively at the time judgment was 15 imposed on November 30, 1994. Additionally, as also noted by the state courts, the consecutive 16 nature of Petitioner's disputed term was statutorily mandated. (Lodgment 2, at 2; Lodgment 4, at 2.) 17 Accordingly, even assuming Petitioner's claims were not time-barred and could be considered 18 by this Court, Petitioner's contention that the disputed consecutive term was somehow arbitrarily 19 imposed by the California Department of Corrections is utterly lacking in any factual or legal 20 support. 21 Accordingly, this Court should conclude that Petitioner is not entitled to equitable tolling.

22 The current Petition is untimely and must be dismissed. 23 /// 24 /// 25 /// 26 27 28
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CONCLUSION Based on the foregoing reasons, the Petition for Writ of Habeas Corpus should be

3 dismissed with prejudice, all relief should be denied, and any request for a certificate of appealability 4 should be rejected. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Case No. 08cv1291 DMS (BLM)
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Dated: September 5, 2008. Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General DANIEL ROGERS Deputy Attorney General

s/KYLE NIKI SHAFFER KYLE NIKI SHAFFER Deputy Attorney General Attorneys for Respondent

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1 2 3 INTRODUCTION

TABLE OF CONTENTS Page 1 2 3

4 PROCEDURAL & FACTUAL BACKGROUND 5 ARGUMENT 6 7 THE PETITION MUST BE DISMISSED BECAUSE IT WAS NOT FILED WITHIN THE PERIOD OF LIMITATIONS SET FORTH IN 28 U.S.C. § 2244(d)

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8 CONCLUSION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 2 3 CASES 4 Bonner v. Carey 5 425 F.3d 1145 (9th Cir. 2005) 6 Calderon v. U.S.D.C. (Beeler) 128 F.3d 1283 (9th Cir. 1997) 7 Calderon v. U.S.D.C. (Kelly) 8 163 F.3d 530 (9th Cir. 1998) 9 Espinoza-Matthews v. California 432 F.3d 1021 (9th Cir. 2005) 10 Furman v. Wood 11 190 F.3d 1002 (9th Cir. 1999) 12 Gaston v. Palmer 387 F.3d 1004 (9th Cir. 2004) 13 Green v. White 14 223 F.3d 1001 (9th Cir. 2000)

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15 Guillory v. Roe 329 F.3d 1015 (9th Cir. 2003) 16 Lewis v. Mitchell 17 173 F. Supp. 2d 1057 (C.D.Cal. 2001) 18 Lindh v. Murphy 521 U.S. 320 19 117 S. Ct. 2059 138 L. Ed. 2d 481 (1997) 20 Malcom v. Payne 21 281 F.3d 951 (9th Cir. 2002) 22 Mendoza v. Carey 449 F.3d 1065 (9th Cir. 2006) 23 Miles v. Prunty 24 187 F.3d 1104 (9th Cir. 1999) 25 Pace v. DiGuglielmo 544 U.S. 408 26 125 S. Ct. 1807 161 L. Ed. 2d 669 (2005) 27 Patterson v. Stewart 28 251 F.3d 1243 (9th Cir. 2001)
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TABLE OF AUTHORITIES (continued) 1 2 Rasberry v. Garcia 448 F.3d 1150 (9th Cir. 2006) 3 Sibley v. Culliver 4 377 F.3d 1196 (11th Cir. 2004) 5 Smith v. Robbins 528 U.S. 259 6 120 S. Ct. 746 145 L. Ed. 2d 756 (2000) 7 Spitsyn v. Moore 8 345 F.3d 796 (9th Cir. 2003) 9 Webster v. Moore 199 F.3d 1256 (11th Cir. 2000) 10 11 12 STATUTES 1-5 3, 5 2 2 2 2 2 2 2 Page 5 5

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13 28 U.S.C. § 2244 14 Antiterrorism and Effective Death Penalty Act ("AEDPA") Pub. L. No. 104-132, 110 Stat. 1214 (1996) 15 California Penal Code 16 § 187 § 207 17 § 245 § 667 18 § 4532 § 12022 19 § 12022.7 20 21 COURT RULES 22 23 24 25 26 27 28
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

California Rules of Court Rule 8.308(a)

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 KYLE NIKI SHAFFER, State Bar No. 122374 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2226 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 Respondent lodges the following documents pursuant to this Court's July 24, 2008 v. A. HEDGPETH, Warden, Respondent. ROBY TAYLOR CHAPPEL, Petitioner, 08cv1291 DMS (BLM) NOTICE OF LODGMENT IN 28 U.S.C. § 2254 HABEAS CORPUS CASE To Be Sent to Clerk's Office

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 Order. These copies are provided for the Court's use and need not be returned to Respondent. 24 The documents being lodged under this Notice by Respondent are: 25 26 27 28 1. Petition for Writ of Habeas Corpus, San Diego County Superior Court,

case no. HC 18962, filed June 1, 2007; 2. Order denying petition for writ of habeas corpus, San Diego County

Superior Court, case no. HC 18962, filed July 16, 2007;
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Petition for Writ of Habeas Corpus, California Court of Appeal, Fourth

Appellate District, Division One, case no. D051699, filed September 25, 2007; 4. Order denying petition for writ of habeas corpus, California Court of

Appeal, Fourth Appellate District, Division One, case no. D051699, filed January 22, 2008; 5. Petition for Writ of Habeas Corpus, California Supreme Court, case no.

S158063, filed November 9, 2007; 6. Court Docket reflecting order denying petition for writ of habeas corpus,

California Supreme Court, case no. S158063, filed May 14, 2008; and 7. Petition for Writ of Habeas Corpus, California Supreme Court, case no.

S162222, filed April 1, 2008. Dated: September 5, 2008. Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General DANIEL ROGERS Deputy Attorney General

s/KYLE NIKI SHAFFER KYLE NIKI SHAFFER Deputy Attorney General Attorneys for Respondent
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NOTICE OF LODGMENT

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