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 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 California state prisoner Charles E. Bolden ("petitioner") has filed a petition for writ of v. D.K. SISTO, Warden, Respondent. CHARLES BOLDEN, Petitioner, C 07-0432 RMW (PR) MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY

21 habeas corpus in this Court pursuant to 28 U.S.C. §§ 2241 & 2254(d). Respondent hereby moves 22 this Court for an order dismissing the petition on the ground that it is untimely. See 28 U.S.C. § 23 2444(d)(1). A motion to dismiss in lieu of a an answer on the merits is appropriate where the 24 petition is procedurally defective. See White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989); O'Bremski 25 v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Rules Governing 28 U.S.C. § 2254 Cases, Rule 4 and 26 Advisory Committee Notes. Respondent has not noticed this motion for hearing as petitioner is in 27 custody and not represented by counsel. 28
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PROCEDURAL HISTORY On July 22, 1997, in Alameda County Superior Court, petitioner pleaded no contest to

3 attempted murder with an enhancement for personal use of a firearm. Motion to Dismiss Exhs. A-B; 4 see Cal. Penal Code §§ 187-189, 664, 12022.5; Petition Exh. A at 2-4. On August 19, 1997, 5 petitioner was sentenced to fifteen years in prison. Petition Exh. A at 4; Motion to Dismiss Exh. B. 6 Petitioner did not directly appeal from his conviction. The time for doing so expired sixty

7 days after sentencing, on October 18, 1997. See Cal. R. Ct. 8.308(a). 8 On December 11, 2001, petitioner filed a petition for writ of habeas corpus in Alameda

9 County Superior Court. Motion to Dismiss Exh. C. That court denied the petition on December 12, 10 2001. Id. 11 On February 22, 2002, petitioner filed a petition for writ of habeas corpus in the California

12 Court of Appeal. Motion to Dismiss Exh. D. That court denied the petition on February 25, 2002. 13 Id. 14 On November 30, 2004, petitioner filed a second petition for writ of habeas corpus in the

15 California Court of Appeal. Motion to Dismiss Exh. E. That court denied the petition as untimely 16 on December 2, 2004. Id. 17 On April 15, 2005, petitioner filed a petition for writ of habeas corpus in the California

18 Supreme Court. Motion to Dismiss Exh. F. That court denied the petition as untimely on March 19 29, 2006. Id. 20 21 22 23 On January 23, 2007, petitioner filed the instant petition. ARGUMENT The petition was filed beyond the one-year statute of limitations. It must be dismissed. Petitioner's 28 U.S.C. § 2254 petition is governed by the Antiterrorism and Effective

24 Death Penalty Act of 1996, which imposes a one-year statute of limitations on the filing of federal 25 habeas petitions. 28 U.S.C. § 2244(d)(1). Here, the limitations period commenced against petitioner 26 on October 18, 1997, sixty days after he was sentenced, when the time for filing a notice of appeal 27 expired. See Cal. R. Ct. 8.308(a); Petition Exh. A; Motion to Dismiss Exh. B. The limitations 28 period expired a year later, on October 18, 1998. See 28 U.S.C. § 2244(d)(1). As petitioner filed
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1 the instant petition in 2007, it is untimely by several years. 2 Although petitioner commenced collateral review in state court in 2001 by filing a petition

3 for writ of habeas corpus in Alameda County Superior Court, that filing did not toll the statute of 4 limitations, as that period had already expired. See 28 U.S.C. § 2244(d)(2); Ferguson v. Palmateer, 5 321 F.3d 820, 823 (9th Cir. 2003). Petitioner's second California Court of Appeal petition, and his 6 California Supreme Court petition could not have tolled the statute of limitations for the additional 7 reason that they were denied as untimely and therefore not "properly filed" for purposes of 28 8 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408 (2005); Bonner v. Carey, 425 F.3d 9 1145, 1148-49 (9th Cir. 2005), amended 439 F.3d 993 (9th Cir.), cert. denied, 127 S. Ct. 132 (2006); 10 Motion to Dismiss Exhs. E (citing In re Clark, 5 Cal. 4th 750, 774 (1993)), F (citing In re Robbins, 11 18 Cal. 4th 770, 780 (1998)). 12 Petitioner may rejoin that one of his claims relies upon a right "newly recognized by the

13 Supreme Court and made retroactively applicable to cases on collateral review," 28 U.S.C. § 14 2244(d)(1)(C), and thus that the limitations period did not commence against him until much later 15 than 1997.1/ Specifically, petitioner claims he improperly received the upper term on his sentence 16 enhancement, and cites Cunningham v. California, 549 U.S. 270 (2007), Blakely v. Washington, 542 17 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Petition at 6(B)-(D). 18 Petitioner cannot invoke § 2244(d)(1)(C). Petitioner agreed to the specific sentence,

19 including its breakdown, that he received, pursuant to a plea bargain whereby he received a 20 reduction in sentence and the dismissal of several charges. Petition Exh. A at 2-4, 6; see Motion to 21 Dismiss Exh. A. A negotiated disposition, particularly one involving an agreed-upon sentence, does 22 not implicate the restrictions on the imposition of upper terms addressed in Cunningham v. 23 California, 549 U.S. 270, Blakely v. Washington, 542 U.S. 296, or Apprendi v. New Jersey, 530 U.S. 24 466. See United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005); Moore v. Hubbard, 2008 U.S. 25 Dist. LEXIS 34889 at **1-2 (C.D. Cal. 2008). 26 27 28 1. Even if applicable, such a contention would not excuse the untimeliness of petitioner's other two claims, as those claims do not purport to rely on new rights or facts. See Petition at 6.
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Section 2244(d)(1)(C) is also inapplicable on its face. The Supreme Court has not made

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1 Cunningham retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(C). 2 Although the Ninth Circuit in Butler v. Curry, __ F.3d __, 2008 U.S. App. LEXIS 12324 (9th Cir. 3 June 9, 2008), recently applied Cunningham retroactively, it did so only as far as the 2004 issuance 4 of Blakely v. Washington, 542 U.S. 296. It did not, in other words, find Cunningham retroactive 5 beyond 2004. As indicated, petitioner's judgment became final in 1997. 6 Petitioner similarly cannot rely on Blakely v. Washington, 542 U.S. 296, or Apprendi v.

7 New Jersey, 530 U.S. 466, for a delayed commencement of the limitations period. Those cases do 8 not apply retroactively to cases that became final before their 2004 and 2000, respectively, issuance. 9 Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005) (holding that Blakely v. Washington, 542 U.S. 10 296, does not apply retroactively to cases on collateral review); Cooper-Smith v. Palmateer, 397 11 F.3d 1236, 1246 (9th Cir. 2005) (holding that Apprendi v. New Jersey, 530 U.S. 466 does not apply 12 retroactively to cases on collateral review); see also United States v. Cruz, 423 F.3d 1119, 1121 (9th 13 Cir. 2005) (holding that United States v. Booker, 543 U.S. 220 (2005), does not apply retroactively 14 to cases on collateral review). 15 In summary, petitioner filed the instant petition more than eight years after the expiration

16 of the statute of limitations. The petition accordingly must be dismissed with prejudice as untimely. 17 See 28 U.S.C. § 2244(d)(1). 18 19 CONCLUSION Accordingly, for the reasons stated, respondent respectfully requests that the petition for

20 writ of habeas corpus be dismissed with prejudice as untimely. 21 22 23 24 25 26 27 28
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Dated: June 17, 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 June 18, 2008, I served the attached 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 June 18, 2008, at San Francisco, California.

D. Desuyo Declarant
20117555.wpd

/s/

D. Desuyo Signature