Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-03052-SI

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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 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYAM. BINSACCA Supervising Deputy Attorney General 5 ELIZABETH S. KIM, State Bar No. 166599 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5715 Fax: (415) 703-5843 8 Email: [email protected] 9 Attorneys for Respondent Ben Curry, Acting Warden 10
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION C07-3052 SI (pr)

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14 15 16 17 18 1920 21 22 TO PETITIONER JOSE GUZMAN, IN PRO PER: PLEASE TAKE NOTICE that pursuant to 28 U.S.C. § 2254 and Rule 4 of the Rules JOSE GUZMAN, Petitioner, NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES Judge: Respondent. The Honorable Susan Illston

v.
BEN CURRY, Warden

23 Governing § 2254 Cases in the United States District Courts, Respondent Ben Curry, Acting 24 Warden of Correctional Training Facility, moves the Court for an order dismissing the above25 entitled action on the ground that Petitioner Guzman's habeas petition is time-barred under the 26 applicable one-year statute oflimitations. 27 This motion is based on this notice and the motion, the supporting memorandum of points

28 and authorities, the pleadings, the records, and the files in this case and Petitioner's prior case.
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Case 3:07-cv-03052-SI

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STATEMENT OF RELEVANT FACTS

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In this petition Petitioner challenges as unlawful a November 4, 2003 decision by the Board

3 of Parole Hearings denying him parole. (Pet.) This is Petitioner's second habeas petition 4 challenging the same November 2003 parole denial. Petitioner's first habeas petition pertaining 5 to this denial was filed in April 2005 (Case No. C05-1732 SI), and the petition was denied by this 6 Court on October 23,2006 due to Petitioner's failure to exhaust his state court remedies. (Case 7 No. C05-1732 SI, Docket 13; see also Pet. at 1.) In dismissing that case, the Court stated that 8 because the California Supreme Court had rejected Petitioner's habeas petition with a citation to

9 People v. Duvall, 9 Cal.4th 464 (Cal. 1995), it was a rejection on procedural grounds and the
10 state court never examined the merits ofthe case. (Case No. C05-1732 SI, Docket 13, Order of 11 Dismissal at 2; Ex. 1.) Thus, Petitioner had failed to exhaust, and the Court stated the petition 12 must be dismissed because there were "no claims as to which state court remedies have been 13 exhausted." (Case No. C05-1732 SI, Docket 13, Order of Dismissal at 2.) 14 The Court dismissed Petitioner's first petition without prejudice, and urged Petitioner "to

15 act swift to exhaust his state court remedies and immediately file a new federal habeas petition 16 after he receives a decision from [the California Supreme Court] to avoid running afoul of the 17 one-year statute oflimitations." (Case No. C05-1732 SI, Docket 13, Order of Dismissal at 2, 18 emphasis original.) On November 2,2006, Petitioner filed a new habeas petition with the 19 California Supreme Court challenging the Board's November 2003 parole denial. (Ex. 2.) The 20 petition was denied on May 9,2007 with the state court's citation to In re Clark, 5 Cal.4th 750 21 (Cal. 1993) and In re Miller, 17 Cal.2d 734 (Cal. 1941). (Ex. 3.) 22 Initially, after Petitioner was denied parole in November 2003, he filed a habeas petition

23 with the Los Angeles County Superior Court on January 5, 2004 challenging that decision. (Ex. 24 4.) In a reasoned decision dated May 7,2004, the superior court denied the petition on the 25 ground that the Board's decision was supported by some evidence in the record. (Id.) Petitioner 26 did not file a petition with the state appellate court, but next filed a habeas petition with the . 27 California Supreme Court, and that petition was denied with the state supreme court's citation to

28 Duvall as indicated above. (Ex. 1.)
Notice of Mot. & Mot. to Dismiss

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In summary, Petitioner filed the following state and federal habeas petitions that challenged

2 the Board's November 2003 parole denial:
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· · · · ·

L.A. County Superior Cal. Supreme Court

Filed 1/5/04 Filed 6/4/04

Denied 5/7/04 (some evidence) Denied 3/23/05 (citing Duvall)

U.S. Dist. Ct. (05-1732) Filed 4/26/05 Dismissed 10/23/06 (failure to exhaust) Cal. Supreme Court Filed 11/2/06 Denied 5/9/07 (citing Clark/Miller)

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U.S. Dist. Ct. (07-3052) Filed 6/12/07 Pending ARGUMENT THE HABEAS CORPUS PETITION MUST BE DISMISSED BECAUSE IT IS TIME-BARRED UNDER THE ONE-YEAR STATUTE OF LIMITATIONS.

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) states that "[a]l-year

12 period oflimitation shall apply to an application for a writ of habeas corpus by a person in 13 custody pursuant to the judgment ofa State court." 28 U.S.C. § 2244(d)(1). This one-year 14 limitation period applies to all 28 U.S.C. § 2254 habeas corpus petitions filed by persons in 15 custody pursuant to the judgment of a state court. Shelby v. Bartlett, 391 F.3d 1061, 1063-65 16 (9th Cir. 2004). 17 In habeas petitions challenging the Board's parole decisions, the limitation period begins

18 to run from "the date on which the factual predicate of the claim or claims presented could have 19 been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(I)(D); Redd v.
20 McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 2003). The one-year limitation period is statutorily

21 tolled, however, during the time "a properly filed application for State post-conviction or other 22 collateral review ... is pending." 28 U.S.C. § 2244(d)(2); Redd, 343 F.3d at 1080-81, 1084 23 (once prisoners "file their state habeas petitions, they get the benefit of statutory tolling until state 24 habeas review is complete"). 25 Here, the date of the "factual predicate" or the basis of Petitioner's habeas petition was

26 the date the Board's November 4,2003 decision became final, or February 2,2004. (Pet'r Ex. B 27 at 49.) Therefore, the statute oflimitation began to run on February 3,2004, the day after the 28 decision became final, and Petitioner had until February 2, 2005 to file his federal habeas
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1 petition. Shelby, 391 F.3d at 1066; Redd, 343 F.3d at 1084. Thus, absent tolling, Petitioner's 2 habeas petition is time-barred because his current petition was filed on June 12,2007, more than 3 two years after the limitation period ran..

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A.

Petitioner's Claims Are Time-Barred Due to Lack of Tolling Between the Two Rounds of His State Court Filings.

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Although the limitation period is tolled during the time a properly filed application for

7 state post-conviction or other collateral review is pending, 28 U.S.C. § 2244(d)(2), it is not tolled 8 during the period between the state supreme court's denial of review on petitioner's first 9 application and petitioner's filing of second application. Biggs v. Duncan, 339 F.3d 1045, 1048 10 (9th Cir. 2003). Also, an application for federal habeas corpus relief does not statutorily toll the 11 limitations period, to give litigants "a powerful incentive [ ] to exhaust all available state 12 remedies before proceeding in the lower federal courts." Duncan v. Walker, 533 U.S. 167, 17213 73, 180, 181-82 (2001). 14 Here, after his parole denial, Petitioner filed a habeas petition with the Los Angeles

15 County Superior Court on January 5, 2004. (Ex. 4.) Petitioner then filed a habeas petition with 16 the California Supreme Court which was denied on March 23, 2005. (Ex. 1.) Thus, Petitioner 17 was entitled to statutory tolling from January 5, 2004 to March 23,2005. 28 U.S.C. § 18 2244(d)(2). As of March 23,2005, however, Petitioner had completed his full round of collateral 19 review; therefore, he ceased to have an application for collateral review pending as of that date. 20 Biggs, 339 F.3d at 1048. Thus, the time period between California Supreme Court's denial of 21 Petitioner's first habeas petition (March 23,2005) and the date of the filing of his second habeas 22 petition to the state supreme court (November 2, 2006), an approximate one-year-seven-month 23 period, was not tolled due to Petitioner having completed his first round of his collateral review 24 on March 23,2005. Biggs, 339 F.3d at 1048. Moreover, under the United States Supreme Court 25 authority, the time period between the filing of his federal petition (April 25, 2005) to the date of 26 the denial of the petition (October 23,2006) was not tolled because a federal habeas petition does 27 not statutorily toll the limitations period. Duncan, 533 U.S. at 172-73,180,181-82. 28 Consequently, when Petitioner attempted to exhaust his state court remedies by filing his second
Notice of Mot. & Mot. to Dismiss

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1 habeas petition with the California Supreme Court on November 2,2006, he did so 2 approximately seven months after the federal limitations period had already expired. Id.; Biggs, 3 339 F.3d at 1048. Therefore, Petitioner's federal habeas petition filed on June 12,2007 was filed 4 after the expiration of the one-year limitations period and should be dismissed.
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B.

Alternatively, the Petition Is Time-Barred Due to an Unreasonable Delay Between his State Court Filings.

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Ifthis Court should determine that Petitioner did not complete one full found of his state

8 collateral reviews as of March 23,2005 because the California Supreme Court's denial of his 9 habeas petition was not on the merits (ex. 1), his federal petition is nonetheless time-barred 10 because of an unreasonable delay between his state court filings. 11 Although the one-year limitation period is statutorily tolled during the time a properly

12 filed application for collateral review is pending, 28 U.S.C. § 2244(d)(2), to count as "pending" 13 the days between the time the lower court reached an adverse decision and the day the prisoner 14 filed a petition in the higher court, the petition to the higher court must have been filed within a 15 reasonable time. Evans v. Chavis, 546 U.S. 189, 126 S. Ct. 846,849-50,854 (2006) (six months 16 of unexplained delay found unreasonable); Culver v. Director ofCorrections, 450 F. Supp. 2d 17 1135, 1140-41 (C.D. Cal. 2006) (unexplained 71-day and 97-day delays between dismissal of one 18 state collateral relief petition and the filing of another found unreasonable). 19 Here, the Los Angeles County Superior Court issued its reasoned decision denying

20 Petitioner's habeas petition on May 7,2004. (Ex. 4.) Petitioner next filed a petition with the 21 California Supreme Court, but this Court found that this petition did not exhaust Petitioner's 22 state court remedies because the state court had rejected the petition on procedural grounds. (Ex. 23 1; Case No. C05-1732 SI, Docket 13, Order of Dismissal at 2.) Thus, on November 2,2006, 24 Petitioner again attempted to exhaust his state court remedies by filing a renewed habeas petition 25 in the state supreme court. (Ex. 2.) Because the time period from the filing of his federal 26 petition (April 25, 2005) to the date ofthe dismissal ofthe petition (October 23,2006) was not 27 tolled, Duncan, 533 U.S. at 172-73, 180, 181-82, when Petitioner filed his renewed habeas 28 petition with the California Supreme Court in November 2006, it was filed two-and-one-half
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1 years after the superior court denied his petition in May 2004. (Exs.2 & 4.) The United States 2 Supreme Court has found a six-month unexplained delay between state court filings to be 3 unreasonable and not subject to tolling. Evans, 126 S. Ct. at 849-50, 854. Thus, here, the over4 two-year delay between the state
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filings is unreasonable, and Petitioner is not entitled to

5 have tolled the period oftime between January 5, 2004 to May 9,2007. (Exs.2-4.) Petitioner's 6 federal petition, therefore, is time-barred. 7 If in this case, out of equitable considerations, the Court were to toll the time period that

8 Petitioner's first federal habeas petition was pending, April 26, 2005 to October 23,2006 (a one9 year-five month-27-day period), Petitioner's current federal petition would still be time-barred. 10 With this time-period tolled, when Petitioner returned to the California Supreme Court on 11 November 2, 2006 to exhaust his state court remedies, he did so eleven months and 28 days after 12 the superior court's denial of his petition. (Exs. 2, 4.) Thus, he only had two days to file his 13 federal habeas petition after California Supreme Court's denial of his petition. The California 14 Supreme Court denied his habeas petition on May 9,2007 (ex. 3), but Petitioner filed the current 15 petition on June 12,2007. Therefore, he filed the federal petition about a month after his 16 limitations period expired, and now his petition is time-barred. 17 \\\ 18 \\\ 19 \\\ 20 21 22 23 24 25 26 27 28
Notice of Mot. & Mot. to Dismiss

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CONCLUSION
Petitioner's habeas corpus petition was filed beyond the one-year limitations period;

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3 therefore, Respondent respectfully requests a dismissal of his petition with prejudice.

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Dated: October 5, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYAM. BINSACCA Supervising Deputy Attorney General

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Notice of Mot. & Mot. to Dismiss
20106684.wpd
SF2oonOO61O

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DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Case No.: I declare:

Guzman v. Curry C07-3052 SI (pr)

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. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On October 5, 2007, I served the attached
NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES (W/ EXHIBITS)

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jose Guzman E-53800 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 IN PRO PER 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 October 5, 2007, at San Francisco, California.

M. Xiang Declarant
2010732l.wpd

. Signature