Free Reply to Opposition - District Court of California - California

Case 5:07-cv-00432-RMW

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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 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 GREGORY A. OTT Deputy Attorney General 6 State Bar No. 160803 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5964 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 15 16 17 18 19 20 21 INTRODUCTION On June 18, 2008, respondent D.K. Sisto, Warden, filed a motion to dismiss the petition v. D.K. SISTO, Warden, Respondent. CHARLES BOLDEN, Petitioner, C 07-0432 RMW (PR) REPLY TO "TRAVERSE" TO MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY

22 for writ of habeas corpus, filed by petitioner Charles Bolden ("petitioner"), as untimely. See 28 23 U.S.C. § 2444(d)(1). Petitioner has filed a brief "traverse" to the motion. We reply. 24 25 ARGUMENT Petitioner does not dispute that his petition is untimely by more than eight years, and

26 offers no explanation for his inaction. Rather, he makes only a few unadorned allegations of 27 wrongdoing. For instance, he notes in passing that he "was deprived of effective assistance of 28 counsel who failed to pursue [an] appeal." Traverse at 2. Such a circumstance, even if, arguendo,
Reply To "Traverse" To Mtn. To Dismiss--Bolden v. Sisto, No. C 07-0432 RMW (PR)

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1 it occurred, would not delay petitioner's presentation of his claims. The limitations period does not 2 run during the time period--here, sixty days, see Cal. R. Ct. 8.308(a)--that a defendant decides 3 whether to pursue an appeal. 4 Petitioner also briefly asserts that the "state fail[ed] to provide indigent defendant with

5 transcripts of first trial, crucial for inmate to prepare effective defense." Traverse at 2. To the extent 6 petitioner suggests he was denied transcripts in preparing the instant or previous collateral review 7 petitions, his assertion fails on several levels. Petitioner bears the burden of showing entitlement 8 to statutory or equitable tolling, see Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002), yet 9 fails to offer any specifics for his assertion, evidence that he requested transcripts, explanation as 10 to how such alleged circumstances impeded him, or documentation to support such a claim. 11 Petitioner's assertion is no more than a passing comment, which does not suffice to warrant tolling 12 of any sort. 13 Equally lacking in detail or support is petitioner's bare comment, "Trial attorney's

14 competence fell below objective standard of reasonableness." Traverse at 2. Such a fact, even if, 15 arguendo, it were true, by itself has no relevance to the statute of limitations, which necessarily 16 concerns circumstances well-after trial. 17 Petitioner also asserts that his sentence was improper under state law prohibitions on the

18 "dual use" of facts. Traverse at 2. The assertion is irrelevant to the statute of limitations or tolling 19 thereof. 20 Last, petitioner appears to assert his sentence violates Cunningham v. California, 549 U.S.

21 270 (2007). See Traverse at 2. To the extent he suggests the statute of limitations did not commence 22 until the issuance of Cunningham, see 28 U.S.C. § 2244(d)(1)(C), we have addressed his assertion 23 in our Motion To Dismiss at 3-4. As discussed there, Cunningham does not apply, and did not delay 24 the commencement of the statute of limitations against petitioner. 25 In summary, as discussed in the motion to dismiss, petitioner filed the instant petition

26 more than eight years after the expiration of the statute of limitations. The petition accordingly must 27 be dismissed with prejudice as untimely. See 28 U.S.C. § 2244(d)(1). 28
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CONCLUSION Accordingly, for the reasons stated, and those set forth in the motion to dismiss,

3 respondent respectfully requests that the petition for writ of habeas corpus be dismissed with 4 prejudice as untimely. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply To "Traverse" To Mtn. To Dismiss--Bolden v. Sisto, No. C 07-0432 RMW (PR)

Dated: August 18, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

/s/ Gregory A. Ott GREGORY A. OTT Deputy Attorney General Attorneys for Respondent

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Bolden v. Sisto, Warden

C 07-0432 RMW (PR)

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004. On August 18, 2008, I served the attached REPLY TO "TRAVERSE" TO MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at San Francisco, California, addressed as follows:

Charles E. Bolden No. K-68224 CSP-Solano 22-N-3L P.O. Box 4000 Vacaville, CA 95696

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 18, 2008, at San Francisco, California.

D. Desuyo Declarant
20132347.wpd

/s/

D. Desuyo Signature