Anthony Lewis Whalem/hunt v. Richard Early, Warden

204 F.3d 907, 2000 Cal. Daily Op. Serv. 1408, 2000 Daily Journal DAR 1977, 2000 U.S. App. LEXIS 2699, 2000 WL 204809
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 24, 2000
Docket99-55627
StatusPublished
Cited by9 cases

This text of 204 F.3d 907 (Anthony Lewis Whalem/hunt v. Richard Early, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Lewis Whalem/hunt v. Richard Early, Warden, 204 F.3d 907, 2000 Cal. Daily Op. Serv. 1408, 2000 Daily Journal DAR 1977, 2000 U.S. App. LEXIS 2699, 2000 WL 204809 (9th Cir. 2000).

Opinion

*908 CHOY, Circuit Judge:

Petitioner Anthony Lewis Whalem/Hunt is currently serving a life sentence with the possibility of parole after being convicted by a California state court of carjacking, kidnapping, and kidnapping for carjacking. In October 1998, Wha-lem/Hunt petitioned a federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. He appeals from the district court’s dismissal of his habeas corpus petition as untimely under the one-year statute of limitation established by 28 U.S.C. § 2244(d)(1), the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 2 Whalem/Hunt contends that the failure until June 1998 of the North Kern State Prison to provide legal materials containing the AEDPA constituted an impediment to filing the petition created by state action such that the limitation period began to run on a later date under § 2244(d)(1)(B). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I.

On September 27, 1994, a Los Angeles County Superior Court jury convicted Whalem/Hunt of carjacking in violation of California Penal Code (“CPC”) section 215(a), kidnapping for ransom in violation of CPC section 209(b), and kidnapping for carjacking in violation of CPC § 209.5(a). On November 29, 1994, the trial court sentenced Whalem/Hunt to life with the possibility of parole.

Whalem/Hunt appealed his conviction to the California Court of Appeal, which affirmed the judgment on February 14,1996. The California Supreme Court denied his petition for review on April 24,1996.

On December 5, 1997, Whalem/Hunt filed a petition for writ of habeas corpus in the California Court of Appeal and asserted two grounds for relief: (1) he was deprived of liberty and due process in violation of the fourteenth amendment of the United States Constitution because CPC sections 215 and 209.5 were not listed as offenses at the time the alleged crimes were committed, and (2) he was deprived of liberty and due process in violation of the fourteenth amendment based on violations of ex post facto clauses of the state and federal constitutions because CPC sections 215 and 209.5 were not in effect at the time the alleged crimes were committed and that he was being held for a charge for which he was never tried and convicted. The California Court of Appeal denied the petition on December 30, 1997. On January 14, 1998, Whalem/Hunt filed a petition for writ of habeas corpus in the California Supreme Court, which denied the petition on May 27,1998.

On October 28, 1998, Whalem/Hunt filed a petition for writ of habeas corpus in the United States District Court for the Central District of California. The grounds for relief asserted by the petition are the same as those previously asserted in the petitions for habeas corpus in California state courts. The government filed a motion to dismiss the petition as untimely. The United States Magistrate Judge Rob *909 ert N. Block issued a report recommending that the district court dismiss the petition with prejudice on the basis that it was time-barred and that equitable tolling did not apply. The district court adopted the magistrate’s findings, conclusions and recommendations and dismissed the petition with prejudice on February 24, 1999. Whalem/Hunt filed a notice of appeal and applied for a certificate of appealability. The district court granted a certificate of appealability as to whether the alleged failure of the prison to provide legal materials containing the amended § 2244(d)(1) until June 1998 constituted an impediment to filing the petition created by state action in violation of Whalem/Hunt’s constitutional right of access to the courts.

II.

This court reviews the district court’s decision to deny petitioner’s 28 U.S.C. § 2254 petition de novo. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (per curiam). Findings of fact made by the district court relevant to its decision are reviewed for clear error. See Houston v. Roe, 177 F.3d 901, 905 (9th Cir.1999).

III.

A. Statute of Limitation

We hold that Whalem/Hunt is not entitled to the later trigger provision under § 2244(d)(1)(B) because he failed to establish that the inadequacy of the prison library constituted an impediment to filing this petition. Whalem/Hunt had from July 23, 1996, to July 22, 1997, to file a timely claim. His claim that he lacked notice of the AEDPA does not explain his failure to file a timely petition between the time his conviction became final and the expiration of the limitation period. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). Whalem/Hunt has not alleged facts that establish that he was so inhibited by the inadequacies of the prison library that he was unable to file and state a legal cause of action before the limitation period expired. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The fact that Whalem/Hunt alleges the same basis for habeas relief in federal court as he did in state court demonstrates that he was able to formulate and present his constitutional claims despite the prison officials’ alleged failure to provide the AEDPA materials for review. Whalem/Hunt’s petition fails not because of inadequacies in the library, but because he waited until after July 22, 1997, to file the petition.

Whalem/Hunt could have filed a valid claim had he filed before the end of the statutory period. By enacting the AED-PA, Congress determined that a state prisoner seeking federal habeas corpus relief should have only one year to file a petition in federal court. This court has already recognized and addressed the possibility of an unfair retroactive effect of the AEDPA. See Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1287 (9th Cir.1997) (holding that a prisoner with a state conviction that became final prior to the enactment of the AEDPA had until April 23, 1997, to file a federal habeas corpus petition), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 539-40 (9th Cir. 1998) (en banc), cert. denied, — U.S. -, 119 S.Ct.

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204 F.3d 907, 2000 Cal. Daily Op. Serv. 1408, 2000 Daily Journal DAR 1977, 2000 U.S. App. LEXIS 2699, 2000 WL 204809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-lewis-whalemhunt-v-richard-early-warden-ca9-2000.