1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 BARRY JOHN SANFORD, Case No. 20-cv-5389 BLF (PR) 11 Petitioner, ORDER GRANTING REQUEST 12 FOR ADDITIONAL TIME TO FILE v. A RESPONSE TO COURT’S 13 INITIAL REVIEW ORDER PEOPLE OF THE STATE OF 14 CALIFORNIA, 15 Respondent. (Docket No. 13) 16
17 18 On August 4, 2020, Petitioner, a California state prisoner, filed a letter which was 19 construed as an attempt to file a petition for a writ of habeas corpus under 28 U.S.C. § 20 2254.1 Dkt. No. 1. Petitioner paid the filing fee. Dkt. No. 10. 21 On September 28, 2020, Petitioner filed a letter of explanation describing the course 22 of his actions in challenging his state conviction and filing this action. Dkt. No. 11. The 23 Court reviewed the papers that were filed in initiating this matter, Dkt. No. 1, and found 24 that Petitioner included a federal petition at the end of the packet under Exhibit “H” which 25 was overlooked by the Clerk. Dkt. No. 1 at 29-35. The Court conducted an initial review 26 of the petition and found it contained both exhausted and unexhausted claims. Dkt. No. 27 1 12. Petitioner was therefore directed to either file an amended petition containing only 2 exhausted claims or file a motion for a stay under either Rhines v. Webber, 544 U.S. 269 3 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), while he returns to the state 4 courts to exhaust additional claims. Id. 5 In response, Petitioner has filed a letter requesting additional time to respond, as 6 well as expressing dissatisfaction with the Court’s silence with regards to his “current 7 circumstances nor the oppressive reality that COVID-19 has placed on [his] ability to 8 respond to the Court’s requirements for habeas action.” Dkt. No. 13 at 1. Petitioner 9 asserts that “[t]hese are extraordinary times,” that neither Rhines nor Kelly are applicable 10 to his circumstances, and that he merely sought to file a petition in the federal courts “to 11 remain active under the one year restrictions placed by the Federal Government on habeas 12 procedure.” Id. at 2-3. The Court addresses Petitioner’s response below. 13 14 DISCUSSION 15 A. Timeliness 16 District courts are permitted, but not obliged, to consider, sua sponte, the timeliness 17 of a state prisoner's habeas petition. Day v. McDonough, 547 U.S. 198, 210 (2006). 18 It appears from the initial filings in this matter that Petitioner initiated this action in 19 order to avoid running afoul of the statute of limitations. The Antiterrorism and Effective 20 Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for 21 the first time a statute of limitations on petitions for a writ of habeas corpus filed by state 22 prisoners. Petitions filed by prisoners challenging noncapital state convictions or 23 sentences must be filed within one year of the latest of the date on which: (A) the 24 judgment became final after the conclusion of direct review or the time passed for seeking 25 direct review; (B) an impediment to filing an application created by unconstitutional state 26 action was removed, if such action prevented petitioner from filing; (C) the constitutional 1 right asserted was recognized by the Supreme Court, if the right was newly recognized by 2 the Supreme Court and made retroactive to cases on collateral review; or (D) the factual 3 predicate of the claim could have been discovered through the exercise of due diligence. 4 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post- 5 conviction or other collateral review is pending is excluded from the one-year time limit. 6 Id. § 2244(d)(2). 7 Here, Petitioner’s appellate counsel correctly advised him of this one-year 8 limitations period, Dkt. No. 1 at 7, as well as the ninety days included for “direct review” 9 during which time a petitioner can file a petition for a writ of certiorari from the United 10 States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. 11 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).2 Accordingly, if a petitioner fails to seek a writ 12 of certiorari from the United States Supreme Court, AEDPA’s one-year limitations period 13 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. 14 See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file 15 petition for certiorari, his conviction became final 90 days after the California Supreme 16 Court denied review). 17 The petition indicates that Petitioner did not seek a writ of certiorari from the 18 United States Supreme Court. Dkt. No. 1 at 14. Therefore, the judgment for his state 19 conviction became final ninety days after the state high court denied review on April 24, 20 2019, i.e., on July 23, 2019. Dkt. No. 1 at 5; Miranda, 292 F.3d at 1065. The limitations 21 period began to run the next day such that Petitioner had until July 23, 2020, to file a 22
23 2 Title 28 U.S.C. § 1257(a) authorizes the United States Supreme Court to review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be 24 had ... where any title, right, privilege, or immunity is specially set up or claimed by the Constitution.” In a criminal prosecution, finality generally is defined by a judgment of 25 conviction and the imposition of a sentence. Florida v. Thomas, 532 U.S. 774, 776-77 (2001) (finding no final judgment—and thus no jurisdiction to review state supreme court's 26 decision on constitutionality of search—where case remanded to trial court for further proceedings). 1 timely federal habeas action in this Court. 28 U.S.C. § 2244(d)(1)(A). Before the 2 limitations period expired, Petitioner filed a state petition for writ of habeas corpus in 3 Humboldt County Superior Court on June 3, 2020. Id. at 9-15. The state superior court 4 denied the petition on June 15, 2020. Id. at 23-24, 26. Since Petitioner initiated state 5 collateral proceedings before the limitations had expired, he is entitled to statutory tolling 6 under 28 U.S.C. § 2244(d)(2). Therefore, Petitioner is entitled to 13 days of tolling (i.e., 7 from June 3, 2020, when he filed the state habeas petition until June 15, 2020, when the 8 superior court denied it), such that Petitioner had until August 5, 2020, to file a timely 9 federal habeas action. Since he filed the instant petition on August 4, 2020, this petition is 10 timely. 11 From his pleadings, it is clear that Petitioner wants to include claims that were not 12 exhausted through his direct appeal. As explained in the Court’s initial review order, 13 Petitioner must exhaust any new claims in the state courts before he may have this Court 14 review them. Dkt. No. 12 at 2-3; see 28 U.S.C. § 2254(b), (c); Rose v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 BARRY JOHN SANFORD, Case No. 20-cv-5389 BLF (PR) 11 Petitioner, ORDER GRANTING REQUEST 12 FOR ADDITIONAL TIME TO FILE v. A RESPONSE TO COURT’S 13 INITIAL REVIEW ORDER PEOPLE OF THE STATE OF 14 CALIFORNIA, 15 Respondent. (Docket No. 13) 16
17 18 On August 4, 2020, Petitioner, a California state prisoner, filed a letter which was 19 construed as an attempt to file a petition for a writ of habeas corpus under 28 U.S.C. § 20 2254.1 Dkt. No. 1. Petitioner paid the filing fee. Dkt. No. 10. 21 On September 28, 2020, Petitioner filed a letter of explanation describing the course 22 of his actions in challenging his state conviction and filing this action. Dkt. No. 11. The 23 Court reviewed the papers that were filed in initiating this matter, Dkt. No. 1, and found 24 that Petitioner included a federal petition at the end of the packet under Exhibit “H” which 25 was overlooked by the Clerk. Dkt. No. 1 at 29-35. The Court conducted an initial review 26 of the petition and found it contained both exhausted and unexhausted claims. Dkt. No. 27 1 12. Petitioner was therefore directed to either file an amended petition containing only 2 exhausted claims or file a motion for a stay under either Rhines v. Webber, 544 U.S. 269 3 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), while he returns to the state 4 courts to exhaust additional claims. Id. 5 In response, Petitioner has filed a letter requesting additional time to respond, as 6 well as expressing dissatisfaction with the Court’s silence with regards to his “current 7 circumstances nor the oppressive reality that COVID-19 has placed on [his] ability to 8 respond to the Court’s requirements for habeas action.” Dkt. No. 13 at 1. Petitioner 9 asserts that “[t]hese are extraordinary times,” that neither Rhines nor Kelly are applicable 10 to his circumstances, and that he merely sought to file a petition in the federal courts “to 11 remain active under the one year restrictions placed by the Federal Government on habeas 12 procedure.” Id. at 2-3. The Court addresses Petitioner’s response below. 13 14 DISCUSSION 15 A. Timeliness 16 District courts are permitted, but not obliged, to consider, sua sponte, the timeliness 17 of a state prisoner's habeas petition. Day v. McDonough, 547 U.S. 198, 210 (2006). 18 It appears from the initial filings in this matter that Petitioner initiated this action in 19 order to avoid running afoul of the statute of limitations. The Antiterrorism and Effective 20 Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for 21 the first time a statute of limitations on petitions for a writ of habeas corpus filed by state 22 prisoners. Petitions filed by prisoners challenging noncapital state convictions or 23 sentences must be filed within one year of the latest of the date on which: (A) the 24 judgment became final after the conclusion of direct review or the time passed for seeking 25 direct review; (B) an impediment to filing an application created by unconstitutional state 26 action was removed, if such action prevented petitioner from filing; (C) the constitutional 1 right asserted was recognized by the Supreme Court, if the right was newly recognized by 2 the Supreme Court and made retroactive to cases on collateral review; or (D) the factual 3 predicate of the claim could have been discovered through the exercise of due diligence. 4 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post- 5 conviction or other collateral review is pending is excluded from the one-year time limit. 6 Id. § 2244(d)(2). 7 Here, Petitioner’s appellate counsel correctly advised him of this one-year 8 limitations period, Dkt. No. 1 at 7, as well as the ninety days included for “direct review” 9 during which time a petitioner can file a petition for a writ of certiorari from the United 10 States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. 11 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).2 Accordingly, if a petitioner fails to seek a writ 12 of certiorari from the United States Supreme Court, AEDPA’s one-year limitations period 13 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. 14 See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file 15 petition for certiorari, his conviction became final 90 days after the California Supreme 16 Court denied review). 17 The petition indicates that Petitioner did not seek a writ of certiorari from the 18 United States Supreme Court. Dkt. No. 1 at 14. Therefore, the judgment for his state 19 conviction became final ninety days after the state high court denied review on April 24, 20 2019, i.e., on July 23, 2019. Dkt. No. 1 at 5; Miranda, 292 F.3d at 1065. The limitations 21 period began to run the next day such that Petitioner had until July 23, 2020, to file a 22
23 2 Title 28 U.S.C. § 1257(a) authorizes the United States Supreme Court to review “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be 24 had ... where any title, right, privilege, or immunity is specially set up or claimed by the Constitution.” In a criminal prosecution, finality generally is defined by a judgment of 25 conviction and the imposition of a sentence. Florida v. Thomas, 532 U.S. 774, 776-77 (2001) (finding no final judgment—and thus no jurisdiction to review state supreme court's 26 decision on constitutionality of search—where case remanded to trial court for further proceedings). 1 timely federal habeas action in this Court. 28 U.S.C. § 2244(d)(1)(A). Before the 2 limitations period expired, Petitioner filed a state petition for writ of habeas corpus in 3 Humboldt County Superior Court on June 3, 2020. Id. at 9-15. The state superior court 4 denied the petition on June 15, 2020. Id. at 23-24, 26. Since Petitioner initiated state 5 collateral proceedings before the limitations had expired, he is entitled to statutory tolling 6 under 28 U.S.C. § 2244(d)(2). Therefore, Petitioner is entitled to 13 days of tolling (i.e., 7 from June 3, 2020, when he filed the state habeas petition until June 15, 2020, when the 8 superior court denied it), such that Petitioner had until August 5, 2020, to file a timely 9 federal habeas action. Since he filed the instant petition on August 4, 2020, this petition is 10 timely. 11 From his pleadings, it is clear that Petitioner wants to include claims that were not 12 exhausted through his direct appeal. As explained in the Court’s initial review order, 13 Petitioner must exhaust any new claims in the state courts before he may have this Court 14 review them. Dkt. No. 12 at 2-3; see 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 15 509, 515-16 (1982). If available state remedies have not been exhausted as to all claims, 16 the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. at 510; Guizar v. 17 Estelle, 843 F.2d 371, 372 (9th Cir. 1988). Prisoners may avoid the risk of having the 18 federal statute of limitations expire while they are exhausting their state remedies “by 19 filing a ‘protective’ petition in federal court and asking the federal court to stay and abey 20 the federal habeas proceedings until state remedies are exhausted.” Pace v. DiGuglielmo, 21 544 U.S. 408, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)). This request 22 for a stay and abbey is the same as the motion for stay described in the Court’s initial 23 review order. Dkt. No. 12 at 4-5. 24 The Court acknowledges that these are “extraordinary” and challenging times due 25 to the COVID-19 pandemic. However, the instructions that the Court provided in its initial 26 review order were neither incorrect nor burdensome. Petitioner may either proceed solely 1 on exhausted claims or seek a stay of this action so that he can pursue collateral review in 2 the state courts to exhaust new claims. The first choice requires that he file an amended 3 petition containing only those claims exhausted on direct review. In this regard, Petitioner 4 need only attach a copy of the petition for review filed with the state high court to a 5 completed federal habeas form. If he is unable to make a copy of the state petition, the 6 instructions on the court form petition merely require that he briefly state each claim with 7 facts in support. Legal arguments and case citations are not necessary nor is Petitioner 8 required to submit any documents as evidence. The second choice requires that Petitioner 9 file a motion under either Rhines, 544 U.S. 269, or Kelly v. Small, 315 F.3d 1063 (9th Cir. 10 2003), as explained in the Court’s initial review order. Dkt. No. 12 at 4-5. 11 A motion filed under Rhines requires Petitioner provide the following: (1) good 12 cause, i.e., state a reasonable excuse to justify the failure to exhaust the claim in state 13 court; and (2) a simple statement of each claim sufficient for the Court to determine 14 whether it is potentially meritorious. 544 U.S. at 277-78. A motion under Kelly does not 15 require Petitioner show good cause as under Rhines, but he must show that the amendment 16 of the new claims which he seeks to exhaust relate back to the exhausted claims by sharing 17 a “common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 655 (2005). Petitioner 18 need not conduct more research to prepare a motion for stay as the Court has already 19 provided him the relevant law, and he need only provide sufficient facts to state a 20 constitutional claim which can be found in the trial records which he states he received 21 from appellate counsel in November 2019. Dkt. No. 11 at 1. 22 In accordance with the foregoing, Petitioner must file an amended petition 23 containing only exhausted claims in the time provided below in order to proceed in this 24 matter. If Petitioner wants to seek a stay of this matter under Rhines or Kelly to exhaust 25 new claims in the state courts and present them for federal habeas review, he must also file 26 a motion satisfying the appropriate standards in the same time provided below. 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. Petitioner’s request for additional time to respond is GRANTED. No later 4 || than forty-two (42) days from the date this order is filed, Petitioner may file notice that he 5 || wishes to strike the unexhausted claims and proceed solely on the two claims that he 6 || presented to the state courts as discussed in the Court’s initial review order. Dkt. No. 12. 7 2. In the alternative, Petitioner may file a motion for stay under Rhines or Kelly 8 || to return to the state courts and exhaust new claims. Along with the motion, he must still 9 || file an amended petition that contains only exhausted claims as discussed above. If the 10 || motion for stay is granted, he will later be permitted to amend the petition to include the 11 || newly exhausted claims. Petitioner must file a motion for a stay no later than forty-two 12 || (42) days from the date this order is filed. 5 13 Failure to respond in accordance with this order in the time provided will S 14 || result in the dismissal without prejudice of this mixed petition under Rose □□□ Lundy, 15 || 455 U.S. at 510. z 16 3. Petitioner requests a copy of his letter, filed under Docket No. 11. Dkt. No. 5 17 || 13 at 5. In the interest of justice, the Court will grant the request. The Clerk of the Court 18 || is directed to include a copy of Docket No. 11 with a copy of this order to Petitioner. 19 IT IS SO ORDERED. 20 || Dated: _November 23, 2020_ fete homer) BETH LABSON FREEMAN United States District Judge 22 23 24 25 |) paPRO.SEIBLFHC 20108389Santord. et response docx 26 27