Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00566-WQH-JMA

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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 KEVIN VIENNA Supervising Deputy Attorney General 5 ERIKA HIRAMATSU, State Bar No. 190883 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) 645-2224 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 Respondents. 20 21 22 23 INTRODUCTION Petitioner Edward Martin Saenz, Jr., seeks habeas corpus relief from a valid judgment of v. SECRETARY OF THE DEPT. OF CORR. AND REHAB., et al., EDWARD MARTIN SAENZ, JR., Petitioner, 08-0566 WQH (JMA) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS (Oral Argument Not Requested) The Honorable Jan M. Adler United States Magistrate Judge IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

24 conviction in San Diego County as a result of a negotiated plea that was entered on June 23, 2003. 25 The change of plea form reflects that prior to pleading guilty, Saenz was advised he would be 26 required to register as a sex offender. On July 23, 2003, the court sentenced Saenz to three years 27 in state prison. Saenz is currently on parole, and therefore in the "custody" of the Board of Parole 28
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1 Hearings.1/ 2 Saenz did not seek an appeal from his conviction, and the one-year statute of limitations

3 expired on September 20, 2004. He took no action whatsoever until July 15, 2007, about when he 4 filed a state habeas petition in the superior court. At that time, the statute of limitations had expired 5 by two years, ten months, and over one week. Like the superior court, the California Court of 6 Appeal rejected Saenz's petition. When Saenz filed an untimely petition for review in the California 7 Supreme Court, the state's highest court refused to grant him relief from default. By the time Saenz 8 filed his Third Amended Petition in this Court on July 7, 2008, the statute of limitations had expired 9 by three years and more than nine and one-half months. This Court should deny and dismiss the 10 petition with prejudice. 11 12 STATEMENT OF THE CASE In exchange for Saenz's plea of guilty to one count of committing a lewd an lascivious act

13 "on the body part of [a] child under the age of 14 years old with the intent of arousing and 14 gratifying" Saenz's sexual desires, the District Attorney dismissed a second count alleging the same 15 conduct, as well as special allegations of substantial sexual conduct as to both counts. (See, 16 Lodgments 1 (Fel. Comp.); 2 (Min. Order, Cal. Super. Ct. No. SCD173567); 3 (Fel. Plea Form) at 17 1, 3.) At the time of his plea, the court indicated it anticipated sentencing Saenz to the low term of 18 three years in state prison. (Lodgment 3 at 1.) The plea form shows Saenz was advised he would 19 face registration as a sex offender as a consequence of his guilty plea. (Lodgment 3 at 2-3.) 20 On July 22, 2003, the court sentenced Saenz to three years in state prison. (Lodgment 4

21 (Min. Order, Cal. Super. Ct. No. SCD173567).) Saenz did not file an appeal. 22 On July 15, 2007, Saenz dated and signed a state habeas petition that was filed by the San

23 Diego Superior Court on July 20, 2007. (Lodgment 5 (Super. Ct. Pet. No. HC19005) at 6.) Saenz 24 claimed that the "mandatory" lifetime sex offender registration requirement of Penal Code section 25 290 violated his "Equal Protection Clause" and "Due Process" rights, "based on the holding of 26 Hofsheier and Stow" (apparently referring to People v. Hofsheier, 37 Cal. 4th 1185, 129 P.3d 29 27 (2006), and later citing "People v. Stow (2006) Case No. TCF 144170, 5th Federal District Court"). 28 1. Jones v. Cunningham, 371 U.S. 236, 243-44, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963).
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1 (Lodgment 5 P. & A. at 1; 3-5, 10; Pet. P. & A. at 1; 3-5, 10.) 2 The Superior Court denied Saenz's habeas petition on September 11, 2007, stating,

3 preliminarily, "Petitioner presents no evidence to support his allegations that courts are picking and 4 choosing which defendants can be relieved of mandatory registration requirements. . . . Vague or 5 conclusory allegations do not warrant habeas relief. . . ." (Lodgment 6 at 2 (citing People v. Duvall, 6 9 Cal. 4th 464, 886 P.2d 1252, 1258 (1995)).) As to Petitioner's claim regarding the registration 7 requirement and People v. Hofsheier, the superior court observed, 8 9 10 11 [T]he facts of petitioner's conviction and those involved in Hofsheier are noticeably different. First of [all], Hofsheier was convicted of having oral copulation with a 16 year old minor. Petitioner was convicted of a lewd and lascivious act upon a child. Hofscheier was able to challenge his registration requirements because another type of sexual conduct with the same victim would not require registration. Here, there is no other type of conduct that would not require registration. Thus, there is no equal protection argument here as there was in Hofsheier.

12 (Id. at 2-3.) The court concluded that Saenz had failed to make a prima facie showing on any other 13 claim, and denied his petition. (Id. at 3.) 14 Saenz attached the superior court's written denial to a two-page request to the California

15 Court of Appeal to review his habeas claims "de novo," dated September 25, 2007, which the Court 16 of Appeal filed on October 10, 2007. (Lodgment 7 (Ct. App. No. D051810) at 2.) The Court of 17 Appeal denied the petition on January 31, 2008, stating, "[P]etitioner presents no specific legal claim 18 for relief, facts, or documentary support. The petition is therefore denied for failing to state a prima 19 facie case for relief." (Lodgment 8 (Ct. App. Order Denying Pet.).) 20 Saenz submitted a petition for review, which the California Supreme Court received on

21 February 14, 2008.2/ (Lodgment 9.) On February 26, 2008, Saenz filed an application for relief 22 from default, which the state high court rejected. (Lodgment 10.) 23 24 STATEMENT OF FACTS The nature of Saenz's offenses is not relevant to resolve the issues in this Motion to

25 Dismiss; Saenz pled guilty prior to a preliminary hearing. 26 2. Respondent was unable to obtain copies from either the state supreme court or appellate courts of Petitioner's petition for review or application for relief from default. Pursuant to Federal 28 Rule of Evidence 201, Respondent requests this Court take judicial notice of the information printed from Petitioner's California appellate case information Web site and lodged as Lodgment 9. 27
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ARGUMENT I. THE PETITION IS BARRED BY THE STATUTE OF LIMITATIONS UNDER 28 U.S.C. § 2244(D) AND SHOULD BE DISMISSED WITH PREJUDICE Because the present petition was filed after April 24, 1996, it is governed by the

6 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Smith v. Robbins, 528 U.S. 259, 268, 7 n.3 (2000). As amended by AEDPA, 28 U.S.C. § 2244(d) delineates a one-year statute of limitations 8 within which a state inmate must file a federal habeas corpus petition, subject to tolling provisions 9 and certain exceptions.3/ 10 For the purposes of AEDPA's statute of limitations, Saenz's conviction became final when

11 his time to file a notice of appeal expired. Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 12 708, 93 L. Ed. 2d 649 (1987) ("By `final,' we mean a case in which a judgment of conviction has 13 been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed 14 or a petition for certiorari finally denied"); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 15 1999); Moshier v. United States, 402 F.3d 116, 118-19 (2d Cir. 2005); see also Sanchez-Castellano 16 v. United States, 358 F.3d 424, 428 (6th Cir. 2004); United States v. Garcia, 210 F.3d 1058, 1060 17 n.4 (finding consistency in "[a] definition of finality that coincides with the end of the time available 18 19 20 21 22 23 24 25 26 27 28 3. 28 U.S.C. § 2244(d) states: (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; (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 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.
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1 for direct appeal"). Being in California, that date was sixty days after Saenz's sentencing, on 2 September 20, 2003. Cal. R. Ct. 8.308; Lewis v. Mitchell, 173 F. Supp. 2d (C.D. Cal. 2001). The 3 limitations period began to run the following day, September 21, 2003, and absent tolling would 4 expire on September 20, 2004. Bowen v. Roe, 188 F.3d 1157, 1160 (9th Cir. 1999); Patterson v. 5 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001); Fed. R. Civ. P. 6(a). 6 7 A. Petitioner Is Not Entitled To Any Statutory Tolling; The Petition Is Untimely By the time Saenz filed his first state habeas petition, the limitations period had already

8 expired. Moreover, the California Supreme Court expressly refused to consider his petition for 9 review, which was untimely. See Cal. R. Ct. 8.500(e)(1).4/ The habeas petition therefore was not 10 "properly filed" in the state's highest court for purpose of statutory tolling. Pace v. DiGuglielmo, 11 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005); Bonner v. Carey, 425 F.3d 1145, 1149 (9th 12 Cir. 2005). Because Saenz filed his Petition after the one-year statute of limitations had expired, it 13 should be dismissed as untimely. 14 15 B. Petitioner Is Not Entitled To Equitable Tolling The AEDPA limitations period may be subject to equitable tolling, but only where

16 "extraordinary circumstances" beyond the prisoner's control made it impossible for him to file a 17 timely petition and he has been pursuing his rights diligently. Miles v. Prunty, 187 F.3d 1104, 1107 18 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006); Calderon v. U.S. District 19 Court (Beeler), 128 F.3d 1283, 1288-1289 (9th Cir. 1997), overruled on other grounds by Calderon 20 v. U. S. District Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc). The burden of 21 demonstrating grounds warranting equitable tolling rests with the prisoner. Beeler, 128 F.3d at 22 23 24 25 26 27 Under Rule 8.264(b)(2)(A), "[t]he denial of a petition for a writ within the court's original 28 jurisdiction without issuance of an alternative writ or order to show cause" is final in the Court of Appeal upon filing.
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4. Rule 8.500(e)(1) provides: A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court under rule 8.264. For purposes of this rule, the date of finality is not extended if it falls on a day on which the clerk's office is closed.

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1 1289; Pace v. DiGuglielmo, 544 U.S. 408; Gaston v. Palmer, 387 F.3d 1004, 1008 (9th Cir. 2004). 2 The district courts have been cautioned to be mindful of Congress's desire to accelerate

3 the federal habeas corpus process. Beeler, 128 F.3d at 1289. A petitioner must establish that the 4 extraordinary circumstances caused the delay. See Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 5 2000) (holding that the prisoner is required "to demonstrate a causal relationship between the 6 extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his 7 filing"); Marsh v. Soares, 223 F.3d 1217, 1221 (10th Cir. 2000) (rejecting equitable tolling claim 8 because, even if temporary closure of prison library constituted extraordinary circumstances, 9 prisoner "has not shown how this lack of access caused his delay in filing"). 10 Saenz has offered no basis for equitable tolling in this case. The earliest he could claim

11 he began pursuing state habeas review was on July 15, 2007, the date of his signature. See Houston 12 v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988). Because that date preceded 13 the expiration of the statute of limitations by more than three years, two months, his lack of diligence 14 precludes equitable tolling. See Pace v. DiGuglielmo, 544 U.S. at 418; Roy v. Lampert, 465 F.3d 15 964, 969-70 (9th Cir. 2006). 16 /// 17 /// 18 /// 19 20 21 22 23 24 25 26 27 28
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CONCLUSION Because the Petition for Writ of Habeas Corpus was not timely filed, the Petition should

3 be dismissed with prejudice. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: September 10, 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 KEVIN VIENNA Supervising Deputy Attorney General

s/Erika Hiramatsu ERIKA HIRAMATSU Deputy Attorney General Attorneys for Respondent

SD2008700706

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