KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned. (ECF Nos. 13, 16.) Petitioner challenges her 2014 conviction for second degree robbery, in violation of California Penal Code § 211, and use of a deadly or dangerous weapon in commission of the robbery, in violation of California Penal Code § 12022(b)(1). (Respondent's Lodged Document 1.)
This action proceeds on the original petition filed June 27, 2016.
Pending before the court is respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. (ECF No. 14.) For the reasons stated herein, respondent's motion is granted with respect to claims 2 and 3. For the reasons stated herein, claim 1 is denied because petitioner is not entitled to relief as to this claim.
Petitioner alleges that she was convicted of second degree robbery in violation of California Penal Code § 211. Petitioner alleges that after she arrived in prison, she discovered that her conviction had been changed to a violation of California Penal Code § 212.5.
Petitioner's abstract of judgment states that petitioner was convicted of violating California Penal Code § 211, second degree robbery. (Respondent's Lodged Document 1.) Attached to the petition is a document titled "Legal Status Summary." (ECF No. 1 at 8.) This document indicates that it was prepared by the California Department of Corrections and Rehabilitation ("CDCR"). (
California Penal Code § 212.5 defines the degrees of robbery. Subsection (c) of this section states that "[a]ll kinds of robbery other than those listed in subdivisions (a) and (b) are of the second degree." Cal. Penal Code § 212.5(c). Therefore, petitioner's conviction was not changed from a violation of § 211 to a violation of § 212.5(c). Rather, the citation to § 212.5(c) in the Legal Status Summary is another way of stating that petitioner was convicted of second degree robbery. Moreover, there is no evidence that the official records of petitioner's conviction, such as the abstract of judgment, were changed to reflect a violation of the California Penal Code other than § 211.
For the reasons discussed above, petitioner's claim that her conviction was improperly changed by the CDCR following her incarceration is without merit. Accordingly, this claim is dismissed.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that,
28 U.S.C. § 2244 (d)(1).
On October 24, 2014, petitioner was sentenced. (Respondent's Lodged Document 1.) Petitioner did not appeal the judgment. Accordingly, her conviction became final 60 days later, on December 23, 2014, when the time for filing an appeal expired.
Petitioner had until December 24, 2015, to file a timely federal petition. The instant action, filed June 27, 2016, is not timely unless petitioner is entitled to statutory or equitable tolling.
Section 2244(d)(2) suspends the limitations period not only for the time during which a "properly-filed" application for post-conviction relief is "pending" in state court but also, in appropriate circumstances, "during the intervals between the denial of a petition by one court and the filing of a new petition at the next level, if there is not undue delay."
The statute of limitations is not tolled between the time the petitioner's conviction becomes final on direct review and the time the first state collateral challenge is filed because there is no case "pending" during that time.
Background of State Habeas Petitions
Petitioner filed the following four post-conviction collateral challenges to her conviction.
On June 16, 2015, petitioner filed a habeas petition in the Sacramento County Superior Court. (Respondent's Lodged Document 2.) The Superior Court denied this petition on July 31, 2015. (Respondent's Lodged Document 3.)
On August 12, 2015, petitioner filed that habeas corpus petition in the California Court of Appeal. (Respondent's Lodged Document 4.) On August 20, 2015, the California Court of Appeal denied this petition. (Respondent's Lodged Document 5.)
On March 20, 2016, petitioner filed another habeas corpus petition in the California Court of Appeal. (Respondent's Lodged Document 6.) On March 30, 2016, the California Court of Appeal denied this petition. (Respondent's Lodged Document 7.)
On April 11, 2016, petitioner filed a habeas corpus in the California Supreme Court. (Respondent's Lodged Document 8.) On June 8, 2016, the California Supreme Court denied this petition. (Respondent's Lodged Document 9.)
Respondent concedes that petitioner is entitled to 66 days of statutory tolling from the date she filed her petition in the Superior Court to when the California Court of Appeal denied her first state appellate petition, i.e., from June 16, 2015, to August 20, 2015. Adding 66 days to the limitations period extends it to February 28, 2016.
For two reasons, respondent argues that petitioner is not entitled to interval tolling for the 212 days between the date the California Court of Appeal denied the first state appellate petition (August 20, 2015) and the date petitioner filed her second petition in the California Court of Appeal (March 20, 2016). Respondent argues that petitioner is not entitled to gap tolling because she delayed in filing the second petition. Respondent also argues that petitioner is not entitled to gap tolling because the state appellate petitions are successive.
It appears that the two state appellate petitions raised different claims. The first state petition is difficult to understand. Petitioner appeared to argue that her attorney had a conflict of interest by representing her in her criminal case and also investigating who shot her during an incident that occurred prior to the robbery. (Respondents' Lodged Document 4.) Petitioner also argued that her co-defendant's confession was improperly used against her. (
Although the gaps or intervals between the filing of petitions to higher courts are usually tolled, the Ninth Circuit employs a two-part test to determine whether the period between petitions filed in the same court are tolled:
As noted above, petitioner's second state appellate petition raised new claims and was not an elaboration of the facts relating to the claims in the first petition. Therefore, petitioner is not entitled to interval tolling between these two petitions.
Respondent also argues that petitioner is not entitled to interval tolling because of the delay in the filing of the second state appellate petition. For the reasons stated herein, the undersigned agrees that petitioner's delay in filing the second state appellate petition also forecloses interval tolling.
Under California law, a habeas petition is timely only if filed within a "reasonable time."
The second state appellate petition is presumptively untimely because it was filed more than 60 days after the California Court of Appeal denied the first state appellate petition. The undersigned next considers whether petitioner has shown good cause for this delay.
The second petition filed in the California Court of Appeal raised the claims now presented in claims 2 and 3, i.e., insufficient evidence and ineffective assistance of counsel. The form for the second state appellate petition contained a section asking petitioner to explain "any delay in the discovery of the claimed grounds for relief and in raising the claims in the petition." (Respondent's Lodged Document 6, at p. 6.) Petitioner wrote in this section, "Not able to obtain discovery. Judge, courts can obtain discovery." (
Petitioner's claim that she delayed in filing the second state appellate petition because she was unable to obtain discovery is vague and conclusory. Petitioner does not describe the discovery she required to raise the two claims alleged in that petition. Petitioner also does not describe any attempts she made to obtain discovery prior to filing the petition. It is unclear why petitioner would require discovery to raise claims 2 and 3. For these reasons, the undersigned does not find that petitioner demonstrated good cause for the delay in the filing of her second state appellate petition.
Because the limitations expired on February 28, 2016, petitioner is not entitled to statutory tolling for the time the second state appellate petition and the petition filed in the California Supreme Court were pending. This conclusion is because these petitions were filed after the statute of limitations expired. A petition filed after the expiration of the statute of limitations cannot extend the limitations period.
Petitioner filed the instant action after the statute of limitations ran on February 28, 2016. Accordingly, the instant action is not timely unless petitioner is entitled to equitable tolling.
The one year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner's control prevent the prisoner from filing on time.
On April 14, 2017, the undersigned ordered petitioner to show cause for her failure to file an opposition to the pending motion to dismiss. (ECF No. 18.) In her response to the order to show cause, petitioner raises claims in support of equitable tolling. (ECF No. 20.) The undersigned addresses these claims herein.
Petitioner argues that she did not file a timely federal petition because she did not have any help from anyone at the law library. (
With respect to petitioner's claim that she did not have help from anyone at the law library, lack of education and ignorance of the law do not constitute extraordinary circumstances warranting equitable tolling.
With respect to her claim of frequent transfers, petitioner does not allege how the frequent transfers prevented her from filing a timely federal petition.
Petitioner alleges that she was frequently denied access to the law library due to lockdowns, some caused by quarantines. Petitioner does not provide any specific information showing the dates and durations of the lockdowns. Accordingly, petitioner has not demonstrated that her lack of law library access prevented her from filing a timely federal petition.
For the reasons discussed above, the undersigned finds that petitioner is not entitled to equitable tolling.
Accordingly, IT HEREBY ORDERED that:
1. Petitioner's claim 1 is dismissed because it is without merit;
2. Respondent's motion to dismiss (ECF No. 14), as to claims 2 and 3, is granted;
3. The court declines to issue a certificate of appealability.