Derik Colin Oliver v. The People

Opinion

3 O

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 DERIK COLIN OLIVER, Case No. 5:19-cv-01499-RGK-KES

12 Petitioner, ORDER DISMISSING PETITION 13 v. AS UNTIMELY

14 THE PEOPLE,

15 Respondent.

17 Derik Colin Oliver (“Petitioner”) filed a Petition for Writ of Habeas Corpus 18 by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Dkt. 1.)1 19 The Court ordered Petitioner to show cause, on or before September 13, 2019, why 20 the Petition should not be dismissed as untimely. Because Petitioner failed to 21 respond, and because the record shows that the Petition is untimely, the Petition is 22 hereby dismissed. 23 I. 24 BACKGROUND 25 The following facts are taken from the Petition, from the Court’s own

26 1 All citations are to the pagination imposed by the Court’s e-filing system. In 27 quoting from Petitioner’s pro se filings, the Court has amended scrivener’s errors where Petitioner’s meaning is clear. 28 1 records, or from public records; where necessary, the Court takes judicial notice of 2 the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that 3 is not subject to reasonable dispute because it … can be accurately and readily 4 determined from sources whose accuracy cannot reasonably be questioned.”); 5 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take 6 judicial notice of its own records in other cases, as well as the records of an inferior 7 court in other cases.”).2 8 In 2016, a Riverside County jury convicted Petitioner of nine sex offenses 9 against his two minor daughters, R. and C. (Dkt. 1 at 13-23 [opinion]); see also 10 People v. Oliver, No. E066861, 2018 Cal. App. Unpub. LEXIS 239 (Jan. 10, 2018). 11 Petitioner pursued a direct appeal challenging his convictions on count 8 12 (committing a forcible lewd act on C. when she was under age 14) and count 9 13 (attempting to use C. for a sexual act for commercial purposes when C. was under 14 age 18). (Dkt. 1 at 14-15.) 15 On January 10, 2018, the California Court of Appeal affirmed his 16 convictions. (Id. at 13.) The court reasoned that C.’s testimony that Petitioner 17 asked her to take “nude” pictures of herself to sell online was substantial evidence 18 supporting his conviction on count 9. (Id. at 16-19.) The court also determined that 19 the trial court did not err by instructing the jury to continue deliberating on count 8 20 after the jury returned inconsistent verdicts (i.e., finding Petitioner “guilty” of a 21 forcible lewd act and “not guilty” of the lesser-included crime of a nonforcible lewd 22 act). (Id. at 19-23.) 23 Petitioner did not file a petition for review in the California Supreme Court. 24 On March 17, 2019, Petitioner constructively filed a habeas petition in California 25 26

27 2 The records of the California appellate courts are available online at: https://appellatecases.courtinfo.ca. gov/. 28 1 Supreme Court case no. S254785. (Dkt. 1 at 7-12 [signature date].)3 That petition 2 was denied on June 19, 2019. Petitioner does not describe, and the online records 3 of the California Supreme Court and California Courts of Appeal do not reveal, any 4 other state court filings by Petitioner.4 5 Petitioner states that any delay in filing his federal Petition was “caused by 6 miscommunication and misrepresentation” by his appellate attorney, “which led to 7 delay for appeal to California Supreme Court.” (Id. at 6.) 8 II. 9 DISCUSSION 10 A. Legal Standard. 11 District courts may raise untimeliness sua sponte when untimeliness is 12 obvious on the face of the petition, and may summarily dismiss a habeas petition as 13 untimely as long as the Court first provides the petitioner with notice and an 14

15 3 Under the prison mailbox rule, filings by a pro se prisoner are generally considered filed at the moment the prisoner gives the filing to prison authorities for 16 mailing. See generally Houston v. Lack, 487 U.S. 266, 270 (1988). Courts 17 generally “deem[] the [filing] constructively ‘filed’ on the date it is signed,” Roberts v. Marshall, 627 F.3d 768, 770 (9th Cir. 2010), cert. denied, 565 U.S. 897 18 (2011), because courts assume that the prisoner turned the filing over to prison 19 authorities on the same day it was signed. Butler v. Long, 752 F.3d 1177, 1179 n.1 (9th Cir. 2014); see also Wolff v. California, 235 F. Supp. 3d 1127, 1129 (C.D. Cal. 20 2017). To obtain the benefit of the prison mailbox rule, a prisoner must give his 21 filing to authorities for mailing within the limitations period. Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (citation omitted). The Court 22 assumes, for purposes of this order, that all of Petitioner’s filings are entitled to the 23 benefit of the mailbox rule. 24 4 To the extent Petitioner alleges that he filed a petition for review in the California 25 Supreme Court, he appears to be referring to his habeas petition, because he gives case no. S254785. (Dkt. 1 at 5.) To the extent he Petitioner alleges that he filed a 26 still-pending habeas petition in “Federal Court” (id. at 6), he appears to be referring 27 to the instant Petition, because the Public Access to Court Electronic Records (“PACER”) database does not show any other federal petitions filed by Petitioner. 28 1 opportunity to respond. Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012); 2 Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). 3 This action is subject to the Antiterrorism and Effective Death Penalty Act of 4 1996 (“AEDPA”), which contains the following statute of limitations: 5 (d) (1) A 1-year period of limitation shall apply to an application for a 6 writ of habeas corpus by a person in custody pursuant to the judgment 7 of a State court. The limitation period shall run from the latest of-- 8 (A) the date on which the judgment became final by the conclusion of 9 direct review or the expiration of the time for seeking such review; 10 (B) the date on which the impediment to filing an application created 11 by State action in violation of the Constitution or laws of the United 12 States is removed, if the applicant was prevented from filing by such 13 State action; 14 (C) the date on which the constitutional right asserted was initially 15 recognized by the Supreme Court, if the right has been newly 16 recognized by the Supreme Court and made retroactively applicable to 17 cases on collateral review; or 18 (D) the date on which the factual predicate of the claim or claims 19 presented could have been discovered through the exercise of due 20 diligence. 21 (2) The time during which a properly filed application for State post- 22 conviction or other collateral review with respect to the pertinent 23 judgment or claim is pending shall not be counted toward any period 24 of limitation under this subsection. 25 28 U.S.C. § 2244(d). Thus, AEDPA “establishes a 1-year time limitation for a state 26 prisoner to file a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 27 113, 114 (2009). 28 1 B. The Petition is Untimely. 2 1. Petitioner’s Criminal Judgment Became Final on February 19, 3 2019. 4 The statute of limitations period usually runs from “the date on which the 5 judgment became final by the conclusion of direct review or the expiration of the 6 time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Nothing in the record 7 suggests that the statute of limitations began to run on any of alternative dates 8 identified in § 2244(d)(1)(B)-(D). 9 “[F]or a state prisoner who does not seek review in a State’s highest court, 10 the judgment becomes ‘final’ for purposes of § 2244(d)(1)(A) on the date that the 11 time for seeking such review expires.” Gonzalez v. Thaler, 565 U.S. 134, 135 12 (2012). Decisions of the California Court of Appeals become final 30 days after 13 they are issued. Cal. R. Ct. 8.264(b). The time to file a petition for review expires 14 10 days later. Cal. R. Ct. 8.500(e); Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 15 2008) (since petitioner did not petition the California Supreme Court for review of 16 the California Court of Appeal decision affirming his conviction, that conviction 17 became final 40 days thereafter), cert. denied, 559 U.S. 1111 (2010). 18 The California Court of Appeal affirmed Petitioner’s convictions on January 19 10, 2018 (Dkt. 1 at 13), and he did not file a petition for review in the California 20 Supreme Court. His criminal judgment therefore became final 40 days later, on 21 February 19, 2018. The one-year AEDPA limitations period expired on February 22 19, 2019, absent tolling. Petitioner did not constructively file the instant Petition 23 until July 9, 2019. (Id. at 6.) 24 2. Petitioner Has Not Shown that He is Entitled to Statutory Tolling. 25 AEDPA provides for statutory tolling as follows: 26 The time during which a properly filed application for State post- 27 conviction or other collateral review with respect to the pertinent 28 judgment or claim is pending shall not be counted toward any period 1 of limitation under this subsection. 2 28 U.S.C. § 2244(d)(2). The United States Supreme Court has interpreted this 3 language to mean that the AEDPA’s statute of limitations is tolled from the time the 4 first state habeas petition is filed until the California Supreme Court rejects a 5 petitioner’s final collateral challenge, as long as the petitioner has not unreasonably 6 delayed during the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 7 219-21 (2002).5 However, statutory tolling “does not permit the re-initiation of a 8 limitations period that has ended before the state petition was filed,” even if the 9 state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 10 2003), cert. denied, 540 U.S. 924 (2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th 11 Cir. 2001), cert. denied, 538 U.S. 949 (2003); Wixom v. Washington, 264 F.3d 894, 12 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 1143 (2002). The burden of 13 demonstrating that the AEDPA’s one-year limitation period was statutorily tolled 14 rests with the petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 15 Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); Gaston v. Palmer, 417 F.3d 16 1030, 1034 (9th Cir. 2005) (as amended); Miranda, 292 F.3d at 1065. 17 Petitioner did not file any habeas petitions in the state court before the 18 AEDPA statute of limitations expired on February 19, 2019. Petitioner’s habeas 19 petition in the California Supreme Court cannot create statutory tolling, because it 20 was constructively filed on March 17, 2019 (Dkt. 12 at 12), after the AEDPA 21 statute of limitations had already expired. Petitioner has not identified, and this 22 Court has not discovered, any other state court filings that would entitle him to 23 statutory tolling. 24 3. Petitioner Has Not Shown that He is Entitled to Equitable Tolling. 25 In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that 26

27 5 Nino has been abrogated on other grounds as stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012). 28 1 the AEDPA’s one-year limitation period may be subject to equitable tolling if the 2 petitioner shows that: (1) he has been pursuing his rights diligently, and (2) some 3 extraordinary circumstance stood in his way and prevented his timely filing. Id. at 4 649 (quoting Pace, 544 U.S. at 418). The Ninth Circuit has held that the Pace 5 standard is consistent with the Ninth Circuit’s “sparing application of the doctrine 6 of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 7 2009), cert. denied, 130 S. Ct. 244 (2009). Thus, “[t]he petitioner must show that 8 ‘the extraordinary circumstances were the cause of his untimeliness and that the 9 extraordinary circumstances made it impossible to file a petition on time.’” Porter 10 v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting Ramirez v. Yates, 571 F.3d 11 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger equitable tolling 12 [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. 13 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), cert. denied, 537 U.S. 1003 (2002). 14 Consequently, as the Ninth Circuit has recognized, equitable tolling will be justified 15 in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Waldron- 16 Ramsey, 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary circumstances’ 17 necessarily suggests the doctrine’s rarity, and the requirement that extraordinary 18 circumstances ‘stood in his way’ suggests that an external force must cause the 19 untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or 20 negligence on [the petitioner’s] part, all of which would preclude the application of 21 equitable tolling.’”). The burden of demonstrating that the AEDPA’s one-year 22 limitation period was equitably tolled rests with the petitioner. See, e.g., Pace, 544 23 U.S. at 418; Banjo, 614 F.3d at 967; Gaston, 417 F.3d at 1034; Miranda, 292 F.3d 24 at 1065. 25 Petitioner’s brief statement that his appellate counsel caused some delay 26 provides insufficient facts to show that the delay meets the standards for equitable 27 tolling (i.e., was an extraordinary circumstance beyond his control that prevented 28 Petitioner from filing a timely § 2254 petition, despite his diligence). Despite being 1 | given an opportunity to explain further by responding to the Order to Show Cause, 2 | Petitioner did not do so. He has therefore failed to demonstrate that he is entitled to 3 || equitable tolling. 4 III. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that the Petition (Dkt. 1) is dismissed with 7 | prejudice as untimely. 8 9 | DATED: October 22, 2019 10 ——— 12 R. GARY KLAUSNER 3 UNITED STATES DISTRICT JUDGE

14 | Presented by: S| Tours E Sestt) 16 | KAREN E. SCOTT 17 | United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28