1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILBERTO PADILLA, No. 2:18-cv-2266-TLN-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel in this petition for writ of habeas 18 corpus under 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely, for failure 19 to state a cognizable claim, and for failure to exhaust a claim. ECF No. 14. For the reasons that 20 follow, the petition is untimely, and the motion must therefore be granted. 21 I. Background 22 Petitioner was sentenced to a term of 12 years in California state prison on December 17, 23 2010. ECF No. 16-1 at 1. He did not appeal. Petitioner filed three state collateral challenges to 24 his incarceration, beginning on July 18, 2016. ECF Nos. 16-2, 16-3, 16-4, 16-5, 16-6, & 16-7. 25 The California Supreme Court denied the last of these challenges on June 13, 2018. ECF No. 16- 26 7. Petitioner filed this action on August 16, 2018. ECF No. 1. 27 ///// 28 ///// 1 II. The Limitations Period 2 Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), a one-year 3 limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date the 4 judgment became final on direct review or the expiration of the time for seeking such review (or 5 April 25, 1996, if the judgment became final prior to AEDPA’s enactment), (2) the date on which 6 a state-created impediment to filing is removed, (3) the date the United States Supreme Court 7 makes a new rule retroactively applicable to cases on collateral review, or (4) the date on which 8 the factual predicate of a claim could have been discovered through the exercise of due diligence. 9 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002). 10 a. Statutory Tolling 11 No statute tolls the limitations period “from the time a final decision is issued on direct 12 state appeal [to] the time the first state collateral challenge is filed . . . .” Nino v. Galaza, 183 13 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction 14 application prior to the expiration of the limitations period, the period is tolled and remains tolled 15 for the entire time that application is “pending.” 28 U.S.C. § 2244(d)(2). “[A]n application is 16 ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and 17 rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed 18 post-conviction application is “pending” during the intervals between a lower court decision and 19 the filing of a new petition in a higher court if the second petition was filed within a “reasonable 20 time” after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 21 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 22 2011) (finding that delays of ninety-one days and eighty-one days are “far longer than the 23 Supreme Court’s thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement,” 24 and are, without adequate explanation, unreasonable under California law). 25 A federal habeas application does not provide a basis for statutory tolling, Duncan v. 26 Walker, 533 U.S. 167, 181-82 (2001), nor does a state petition filed after the federal limitations 27 period has expired, Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 28 ///// 1 A petitioner may be entitled to statutory tolling for the time that additional rounds of state 2 habeas petitions are pending (provided they were filed prior to the expiration of the limitations 3 period), although the time between rounds is not tolled. Cross v. Sisto, 676 F.3d 1172, 1178-79 4 (9th Cir. 2012); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). For tolling to be applied 5 based on a subsequent round, that subsequent set of petitions cannot be untimely or improperly 6 successive. Porter, 620 F.3d at 958. 7 b. Equitable Tolling 8 The limitations period may also be equitably tolled where a habeas petitioner establishes 9 two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 10 circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631 11 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. 12 Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 13 2002). The threshold necessary to trigger equitable tolling is very high, “lest the exceptions 14 swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable 15 tolling may be applied only where a petitioner shows that some external force caused the 16 untimeliness. Id. 17 c. The Equitable Exception for Innocence 18 In addition, the statute of limitations is subject to an actual innocence exception.1 A 19 petitioner may have her untimely filed case heard on the merits if she can persuade the district 20 court that it is more likely than not that no reasonable juror would have convicted her. McQuiggin 21 v. Perkins, 569 U.S. 383, 386, 394-95 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) 22 (en banc). “Unexplained delay in presenting new evidence bears on the determination whether 23 the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at 399. For example, the 24 “court may consider how the timing of the submission and the likely credibility of a petitioner’s 25 affiants bear on the probable reliability” of his evidence of innocence. Id. 26 1 This exception is also known variably as the “miscarriage of justice” exception and the 27 “Schlup gateway,” after Schlup v. Delo, 513 U.S. 298 (1995), in which the U.S. Supreme Court held that a habeas petitioner whose claims were procedurally barred could nevertheless obtain a 28 determination on the merits of his petition if he made the requisite showing of actual innocence. 1 III. Analysis 2 Respondent moves to dismiss the petition on the ground that it is untimely under AEDPA. 3 For the reasons that follow, the court agrees. 4 Respondent correctly argues that the limitations period began to run on February 16, 2011, 5 which was the day on which petitioner’s opportunity to seek direct review expired. 28 U.S.C. 6 § 2244(d)(1)(A); Cal. R. Ct. 8.308(a); ECF No. 16-1 at 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILBERTO PADILLA, No. 2:18-cv-2266-TLN-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel in this petition for writ of habeas 18 corpus under 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely, for failure 19 to state a cognizable claim, and for failure to exhaust a claim. ECF No. 14. For the reasons that 20 follow, the petition is untimely, and the motion must therefore be granted. 21 I. Background 22 Petitioner was sentenced to a term of 12 years in California state prison on December 17, 23 2010. ECF No. 16-1 at 1. He did not appeal. Petitioner filed three state collateral challenges to 24 his incarceration, beginning on July 18, 2016. ECF Nos. 16-2, 16-3, 16-4, 16-5, 16-6, & 16-7. 25 The California Supreme Court denied the last of these challenges on June 13, 2018. ECF No. 16- 26 7. Petitioner filed this action on August 16, 2018. ECF No. 1. 27 ///// 28 ///// 1 II. The Limitations Period 2 Under the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), a one-year 3 limitations period for seeking federal habeas relief begins to run from the latest of: (1) the date the 4 judgment became final on direct review or the expiration of the time for seeking such review (or 5 April 25, 1996, if the judgment became final prior to AEDPA’s enactment), (2) the date on which 6 a state-created impediment to filing is removed, (3) the date the United States Supreme Court 7 makes a new rule retroactively applicable to cases on collateral review, or (4) the date on which 8 the factual predicate of a claim could have been discovered through the exercise of due diligence. 9 28 U.S.C. § 2244(d)(1)(A)-(D); Malcom v. Payne, 281 F.3d 951, 955 (9th Cir. 2002). 10 a. Statutory Tolling 11 No statute tolls the limitations period “from the time a final decision is issued on direct 12 state appeal [to] the time the first state collateral challenge is filed . . . .” Nino v. Galaza, 183 13 F.3d 1003, 1006 (9th Cir. 1999). However, if a petitioner properly files a state post-conviction 14 application prior to the expiration of the limitations period, the period is tolled and remains tolled 15 for the entire time that application is “pending.” 28 U.S.C. § 2244(d)(2). “[A]n application is 16 ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and 17 rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed 18 post-conviction application is “pending” during the intervals between a lower court decision and 19 the filing of a new petition in a higher court if the second petition was filed within a “reasonable 20 time” after the denial of the first. Carey v. Saffold, 536 U.S. 214, 221 (2002); Stancle v. Clay, 21 692 F.3d 948, 956 (9th Cir. 2012); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 22 2011) (finding that delays of ninety-one days and eighty-one days are “far longer than the 23 Supreme Court’s thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement,” 24 and are, without adequate explanation, unreasonable under California law). 25 A federal habeas application does not provide a basis for statutory tolling, Duncan v. 26 Walker, 533 U.S. 167, 181-82 (2001), nor does a state petition filed after the federal limitations 27 period has expired, Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 28 ///// 1 A petitioner may be entitled to statutory tolling for the time that additional rounds of state 2 habeas petitions are pending (provided they were filed prior to the expiration of the limitations 3 period), although the time between rounds is not tolled. Cross v. Sisto, 676 F.3d 1172, 1178-79 4 (9th Cir. 2012); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). For tolling to be applied 5 based on a subsequent round, that subsequent set of petitions cannot be untimely or improperly 6 successive. Porter, 620 F.3d at 958. 7 b. Equitable Tolling 8 The limitations period may also be equitably tolled where a habeas petitioner establishes 9 two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 10 circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631 11 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Smith v. 12 Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 13 2002). The threshold necessary to trigger equitable tolling is very high, “lest the exceptions 14 swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable 15 tolling may be applied only where a petitioner shows that some external force caused the 16 untimeliness. Id. 17 c. The Equitable Exception for Innocence 18 In addition, the statute of limitations is subject to an actual innocence exception.1 A 19 petitioner may have her untimely filed case heard on the merits if she can persuade the district 20 court that it is more likely than not that no reasonable juror would have convicted her. McQuiggin 21 v. Perkins, 569 U.S. 383, 386, 394-95 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) 22 (en banc). “Unexplained delay in presenting new evidence bears on the determination whether 23 the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at 399. For example, the 24 “court may consider how the timing of the submission and the likely credibility of a petitioner’s 25 affiants bear on the probable reliability” of his evidence of innocence. Id. 26 1 This exception is also known variably as the “miscarriage of justice” exception and the 27 “Schlup gateway,” after Schlup v. Delo, 513 U.S. 298 (1995), in which the U.S. Supreme Court held that a habeas petitioner whose claims were procedurally barred could nevertheless obtain a 28 determination on the merits of his petition if he made the requisite showing of actual innocence. 1 III. Analysis 2 Respondent moves to dismiss the petition on the ground that it is untimely under AEDPA. 3 For the reasons that follow, the court agrees. 4 Respondent correctly argues that the limitations period began to run on February 16, 2011, 5 which was the day on which petitioner’s opportunity to seek direct review expired. 28 U.S.C. 6 § 2244(d)(1)(A); Cal. R. Ct. 8.308(a); ECF No. 16-1 at 1. Petitioner advances no reason for a 7 later limitations period start-date under § 2244(d)(1)(B), (C), or (D). 8 All of petitioner’s state habeas petitions were filed well outside the federal limitations 9 period, which expired on February 15, 2012. State petitions filed after the expiration of the 10 federal limitations period cannot toll the limitations period. Ferguson, 321 F.3d at 823. Thus, 11 this case presents no grounds for statutory tolling. 12 In addition, petitioner advances no equitable grounds under which this court could 13 consider his untimely petition. Petitioner mentions in passing that he was sentenced while a 14 minor. ECF No. 23. This appears to be a substantive basis for his habeas claim rather than an 15 argument regarding the limitations period. If petitioner is claiming that the limitations period 16 should be equitably tolled for the period of time that he was a minor, the court should reject the 17 argument. Petitioner cites no authority holding that the limitations period is tolled during a 18 petitioner’s minority. On the contrary, it appears that the courts who have addressed such an 19 argument have rejected it. E.g., Castañeda v. Arnold, No. 2:14-cv-02014 GEB DAD P, 2015 20 U.S. Dist. LEXIS 75366, at *20 (E.D. Cal. June 9, 2015) (minority was not an “extraordinary 21 circumstance” justifying equitable tolling); Eversole v. Thayer, No. 3:11-CV-1478-M (BK), 2012 22 U.S. Dist. LEXIS 186910, at *7-8 (N.D. Tex. Oct. 23, 2102). The court does not need to engage 23 with whether the limitations period should be tolled during a petitioner’s minority here, however, 24 because even if the court were to toll the limitations period until petitioner’s 18th or 21st 25 birthdays (July 15, 2011 and July 15, 2014, respectively), the limitations period would still have 26 ///// 27 ///// 28 ///// 1 || elapsed well before he filed his first state habeas petition on July 13, 2016. Accordingly, the 2 || petition must be dismissed.” 3 IV. Recommendation 4 As the petition is untimely, and petitioner has not presented facts that would justify tolling 5 | the limitations period or applying an exception thereto, it is RECOMMENDED that respondent’ 6 || December 28, 2018 motion to dismiss (ECF No. 14) be granted. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | DATED: August 6, 2019. tid, PDEA EDMUND F. BRENNAN 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 |—§_ ? As the case must be dismissed as untimely, the court need not consider respondent’s 28 | additional arguments regarding whether petitioner’s claims are cognizable and exhausted.