Free Reply to Opposition - District Court of California - California

Case 3:07-cv-03627-MMC

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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 MICHELE J. SWANSON, State Bar No. 191193 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5703 7 Fax: (415) 703-1234 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 MALIK ALI MUHAMMAD, 15 Petitioner, 16 v. 17 DERRAL ADAMS, Warden, 18 Respondent. 19 20 21 On February 14, 2008, respondent filed a motion to dismiss the petition for writ of REPLY TO OPPOSITION TO MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY C 07-3627 MMC (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

22 habeas corpus as untimely. On June 5, 2008, respondent received petitioner's opposition. The 23 following is our reply. 24 25 26 ARGUMENT THE PETITION IS UNTIMELY Petitioner makes two arguments in opposition to the motion to dismiss. First, that he is

27 entitled to statutory tolling for the entire time his state habeas cases were pending in state court. 28 Second, that he is entitled to equitable tolling. Both of these arguments lack merit.
Reply to Opposition to Motion to Dismiss Pet. for Writ of Hab. Corpus as Untimely Muhammad v. Adams, Warden C 07-3627 MMC (PR)

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A.

Petitioner Is Not Entitled To Statutory Tolling Between The Time His State Court Of Appeal And Supreme Court Petitions Were Pending In our motion to dismiss, we argued that petitioner was not entitled to tolling for the period

4 between his state court of appeal and supreme court petitions, as he unreasonably delayed filing in 5 the state supreme court for 117 days after denial of his petition in the court of appeal. Petitioner 6 contends that there was only a 96-day delay between the two actions, Opp. at 13, as he did not 7 receive notice of the state court of appeal's denial of his habeas petition until July 11, 2006. Opp. 8 at 8. That circumstance does not justify equitable tolling. See Drew v. Department of Corrections, 9 297 F.3d 1278, 1288 (11th Cir. 2002). But even if it did, 96 days is still far more than the 60-day 10 period considered reasonable for filing a state habeas petition at the next highest level. See Evans 11 v. Chavis, 546 U.S. 189, 201 (2006) (noting that 60 days is the longest amount of time most states 12 allow to present a claim to a higher court); see also Culver v. Director of Corrections, 450 F. Supp. 13 2d 1135, 1140-1141 (C.D. Cal. 2006) (finding filing delays of 71 and 97 days between state petitions 14 to be unreasonable under Chavis); Dorthick v. Hamlet, No. C 06-4860 CRB (PR), 2007 WL 15 1430041, *3 (N.D. Cal. May 14, 2007) (delays of 97 and 174 days unreasonable); Forrister v. 16 Woodford, No. 1:05-CV-00170 LJO WMW HC, 2007 WL 809991, *3 (E.D. Cal. March 15, 2007) 17 (delay of 88 days unreasonable). 18 Petitioner, citing Justice Stevens's concurring opinion in Evans v. Chavis, argues that

19 when a state court issues an unexplained denial of a habeas corpus petition, and there has been a 20 delay of less than six months, the "state court has concluded that the petition was filed in a timely 21 manner." Opp. at 9. Petitioner notes that the California Supreme Court denied his habeas petition 22 on a procedural ground other than untimeliness. Opp. at 9-10. Petitioner reasons that the state 23 supreme court presumably considered all procedural grounds before rendering its decision, and that 24 by failing to specifically reject the petition on untimeliness grounds as well, it determined "that the 25 petition was in fact filed in a timely manner." Opp. at 10. 26 As a threshold matter, we note that a concurring opinion does not constitute the holding

27 of the Court. Petitioner's citation to Justice Stevens's concurring opinion in Chavis is therefore 28 unavailing. Rather, it is only the majority opinion that is binding on the lower courts. Thus, as the
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1 Supreme Court held in Chavis, when a state court denies a habeas petition without any explanation 2 or indication as to timeliness, a federal court must conduct its own inquiry to determine whether the 3 state habeas petition was filed within a reasonable time. Chavis, 546 U.S. at 197-198. The Supreme 4 Court majority expressly stated, "Six months is far longer than the `short period[s] of time,' 30 to 5 60 days, that most states provide for filing an appeal to the state supreme court." Id. at 201. Further, 6 because Chavis did not distinguish between denials on the merits or on procedural grounds, such a 7 rule applies equally in this case. 8 Petitioner argues that in Carey v. Saffold, 536 U.S. 214 (2002), the United States Supreme

9 Court found "that a delay in excess of 4 1/2 months did not bar the resolution of the issues," and that 10 the Ninth Circuit "reaffirmed" that determination in Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 11 2005). Opp. at 11. However, in Saffold, the Court found that because there were special 12 circumstances present in the case--the petitioner claimed that he did not receive the court of 13 appeal's denial for several months, and that he filed in the supreme court within days of receiving 14 the denial--it was up to the federal court of appeals to decide if the petition was untimely. Saffold, 15 536 U.S. at 226. And we note that the Gaston decision cited by petitioner was later modified in 16 Gaston v. Palmer, 447 F.3d 1165 (9th Cir. 2006), after the Supreme Court's decision in Evans v. 17 Chavis. In its opinion after rehearing, the Ninth Circuit held that 10, 15, and 18-month intervals 18 between state petitions did not warrant tolling. Gaston, 447 F.3d at 1167. 19 In sum, petitioner has not cited any facts or law to overcome respondent's showing of

20 untimeliness. The petition should accordingly be dismissed. 21 22 B. Petitioner Is Not Entitled To Equitable Tolling Petitioner contends that he is entitled to equitable tolling in this case. Assuming that

23 equitable tolling of AEDPA is available, see Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007), a 24 federal habeas petitioner is entitled to equitable tolling only when "extraordinary circumstances 25 beyond a prisoner's control make it impossible to file a petition on time." Spitsyn v. Moore, 345 26 F.3d 796, 799 (9th Cir. 2003). Given that "the threshold necessary to trigger equitable tolling is very 27 high," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), it is "unavailable in most cases." 28 Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). The petitioner bears the burden of showing
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1 that equitable tolling should apply in his case. Miranda, 292 F.3d at 1065. He must establish the 2 following: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 3 circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 4 Petitioner contends that he should be excused from failing to timely file his petition in this

5 case because he is a pro se prisoner; he works as a prison chapel clerk from 8:30 a.m. to 3:30 p.m. 6 Monday through Friday; and he was prevented from timely filing his state supreme court petition 7 because of a prison policy limiting the number of copies an inmate can obtain to less than 10, the 8 amount necessary to file a petition in the California Supreme Court (see Cal. Rules of Ct., rule 9 8.380(a)(3)). Opp. at 12-13. However, petitioner's status as an employed pro per prisoner is hardly 10 an extraordinary circumstance warranting equitable tolling, especially in light of the fact that he 11 managed to file his state court of appeal petition in a reasonable time after the denial of his superior 12 court petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding "that a pro 13 se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting 14 equitable tolling."); Herrera v. Butler, 2004 WL 1729927, *2 (N.D. Cal. July 22, 2004) (finding that 15 a petitioner's pro se status and ignorance of the law do not warrant equitable tolling). Moreover, 16 we note that petitioner has failed to submit any documentary evidence of Corcoran State Prison's 17 alleged policy limiting the amount of copies an inmate can obtain. Even if he could present such 18 evidence, he has not alleged any facts showing that he could not obtain an exemption from such 19 policy, or that he acted with due diligence to obtain the amount of copies necessary for filing with 20 the state supreme court. Finally, we note that an evidentiary hearing is unnecessary to resolve such 21 issues, because petitioner is quite capable of presenting such evidence on his own. 22 In sum, petitioner has not met his burden of showing that he is entitled to equitable tolling

23 in this case. Accordingly, the petition should be dismissed as untimely. 24 /// 25 /// 26 /// 27 28
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CONCLUSION Accordingly, respondent respectfully requests that the petition for writ of habeas corpus

3 be dismissed with prejudice. 4 5 6 7 8 9 10 11 12 13 14 15 16
20115485.wpd

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/ Michele J. Swanson MICHELE J. SWANSON Deputy Attorney General Attorneys for Respondent

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SF2007402888

Reply to Opposition to Motion to Dismiss Pet. for Writ of Hab. Corpus as Untimely

Muhammad v. Adams, Warden C 07-3627 MMC (PR)

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