Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-01126-W-LSP

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 ERIKA HIRAMATSU Deputy Attorney General 5 KEVIN VIENNA, State Bar No. 186751 Supervising Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2198 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 TO PETITIONER GHENGIS STEVENSON PROCEEDING IN PRO SE: PLEASE TAKE NOTICE that Respondent hereby moves this Court for an order v. (No Hearing Required) DERRAL G. ADAMS, Warden, The Honorable Leo S. Papas Respondent. GENGHIS KHAN ALI STEVENSON, Petitioner, 08cv1126 W (LSP) NOTICE OF MOTION AND MOTION TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 dismissing the Petition for Writ of Habeas Corpus because the Petition is barred by the Statute of 24 Limitations. This Motion is based on this Notice of Motion and Motion, the accompanying 25 Memorandum of Points and Authorities, and on the pleadings filed or documents lodged in this 26 action. 27 /// 28 ///
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WHEREFORE, Respondent respectfully requests the Petition be dismissed with prejudice. Dated: September 3, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ERIKA HIRAMATSU Deputy Attorney General

s/Kevin Vienna KEVIN VIENNA Supervising Deputy Attorney General Attorneys for Respondent

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 ERIKA HIRAMATSU Deputy Attorney General 5 KEVIN VIENNA, State Bar No. 186751 Supervising Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2198 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 INTRODUCTION Petitioner Genghis Stevenson seeks habeas corpus relief from a judgment of conviction v. DERRAL G. ADAMS, Warden, Respondent. GENGHIS KHAN ALI STEVENSON, Petitioner, 08cv1126 W (LSP) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS (No Hearing Required) The Honorable Leo S. Papas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 for possessing a weapon as a prisoner and a sentence of six years imprisonment, entered in Imperial 24 County Superior Court on February 28, 2006. But his Petition is untimely and must be dismissed. 25 In brief summary, there were three periods of time following finality of Stevenson's state

26 conviction during which no tolling applied which, combined, exceed the one year statute of 27 limitations: (1) a period of eleven days from the date of finality until he constructively filed his first 28 state petition; (2) a period of 256 days between the denial of his first state petition and the
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1 constructive filing of his second (and last) state petition, for which tolling cannot apply because the 2 delay between these petitions was unreasonable; and (3) a period of 362 days between the denial of 3 his last state petition and the constructive filing of his current federal Petition. 4 5 PROCEDURAL BACKGROUND1/ An Imperial County Grand Jury indicted Stevenson on the charges of assault by a state

6 prisoner, battery on a non-confined person, and unlawful possession of a weapon. The indictment 7 further alleged, inter alia, that Stevenson had previously been convicted of robbery and carjacking, 8 which qualified as serious or violent crimes under California's Three Strikes law. (Lodgment 1 (trial 9 court records), indictment.) 10 Stevenson entered into a negotiated plea agreement with the prosecutor. The agreement

11 provided that Stevenson would plead no contest to possession of a weapon and specified that 12 Stevenson's punishment would be a six-year prison term (the middle term of three years, doubled 13 based on a single strike), to be served consecutively to his current sentence. (Lodgment 1, plea 14 form.) 15 On February 28, 2006, Stevenson entered a no contest plea, pursuant to the agreement, and

16 admitted one of the two prior strike convictions. The trial court sentenced him to the six-year term, 17 as stipulated by the agreement. (Lodgment 1, minute order 2/28/2006 & abstract of judgment.) 18 19 Stevenson did not file a direct appeal.2/ (Pet. at 2.) Eventually, though, Stevenson brought collateral attacks against the judgment in the state

20 courts. On May 12, 2006, he signed, and on May 22, 2006, he filed a petition for writ of habeas 21 corpus in the California Court of Appeal. (Lodgment 2.) In that petition, he raised a single claim, 22 which alleged that he was induced to enter a no contest plea based on his counsel's alleged 23 deficiencies. 24 25 1. No records in the possession of counsel for Respondent describe the facts of Stevenson's crime. Since the nature of the crime is not pertinent to resolution of this Motion to Dismiss, the 26 usual statement of facts is omitted. 27 2. In his Petition, Stevenson lists two habeas corpus actions he brought in the state courts 28 under the section designated "Direct Appeal." He clearly stated, however, for each, that the actions were petitions for writ of habeas corpus. (Pet. at 2 ¶ 11, 12.)
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The court of appeal denied the petition on June 29, 2006, concluding that the trial records

2 demonstrated that the plea was knowing and voluntary and Stevenson had not contradicted that 3 evidence. (Lodgment 3.) 4 About nine months later, on March 13, 2007, Stevenson signed and on March 16, 2007,

5 he filed a petition for writ of habeas corpus, raising the same claim, in the California Supreme Court. 6 (Lodgment 4.) That court denied the petition without comment or citation to authority on June 13, 7 2007. (Lodgment 5.) 8 Stevenson signed the Petition now before this Court on June 10, 2008, and the Petition was

9 filed on June 24, 2008. (Pet. at 1, 10.) That Petition raises a single claim: that he suffered 10 ineffective assistance of counsel through counsel's failure to investigate, prepare pretrial motions, 11 or prepare for trial. (Pet. at 6.) 12 13 14 15 16 ARGUMENT I. THE PETITION IS BARRED BY THE STATUTE OF LIMITATIONS PURSUANT TO 28 U.S.C. § 2244 (D) AND THEREFORE SHOULD BE DISMISSED WITH PREJUDICE Because the present Petition was filed after April 24, 1996, it is governed by the

17 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Smith v. Robbins, 528 U.S. 259, 268 18 n.3, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). As amended by AEDPA, 28 U.S.C. § 2244(d) now 19 provides for a limitations period of one year.3/ 20 21 22 23 24 25 26 27 28 3. The statute provides as follows: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable
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There is no indication that Stevenson ever appealed the judgment.

(Pet. at 2.)

2 Accordingly, for Stevenson, his state judgment became final at the expiration of the time period 3 during which he might have brought an appeal. In California, that is sixty days after proceedings 4 have concluded in the state trial court. Cal. Ct. R. 31(d) (now, Cal. Ct. R. 8.308(a)); Lewis v. 5 Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 2001). 6 Since Stevenson's sentence was imposed on February 28, 2006, he had sixty days, until

7 May 1, 2006, to file an appeal. The statute of limitations commenced the next day, and expired one 8 year later, on May 1, 2007,4/ unless Stevenson is entitled to a later start date or to tolling of the 9 limitations period. As will be seen, Stevenson is not entitled to a later start date, and, although he 10 is entitled to some tolling, he is not entitled to enough tolling to render timely his current Petition, 11 which was not constructively5/ filed until June 10, 2008, at the earliest. 12 13 A. Commencement Of The Limitations Period Normally, the statute of limitations begins to run on the day following finality, Fed. R.

14 Civ. P. 6(a), unless one of three exceptions apply. 28 U.S.C. § 2244(d)(1)(B)-(D). None of the 15 exceptions applies to Stevenson: there was no state impediment to his seeking further relief; his 16 claims do not rely on any new constitutional right determined by the United States Supreme Court 17 to be retroactive; and the factual predicate for his current claims was known by the time his 18 19 20 21 22 23 24 to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

4. The sixtieth day was April 29, 2006, but that was a Saturday. The next court day was 25 Monday, May 1, 2006. 26 5. Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 27 245 (1988), an incarcerated pro se prisoner's pleading is deemed filed at the moment of delivery to prison officials. This mailbox rule has been extended to both state and federal habeas corpus 28 petitions for purposes of applying the AEDPA statute of limitations. See Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999).
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1 conviction was final.6/ 2 Thus, the limitations period began to run on the day following finality, to expire on May 1,

3 2007, absent tolling. 4 5 B. Stevenson Is Entitled To Some Statutory Tolling, But Not Enough A petitioner has the burden of demonstrating facts supporting tolling. See Pace v.

6 DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005); Gaston v. Palmer, 417 7 F.3d 1030, 1034 (9th Cir. 2005) (as amended); Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002). 8 Stevenson appears to be entitled to some statutory tolling, based on the two habeas corpus petitions 9 he filed in the state courts. 10 11 12 The conviction was final on May 1, 2006. It appears that Stevenson constructively filed 1. No Tolling From Finality Of State Conviction Until Filing Of His First State Petition

13 his first state habeas corpus petition on May 12, 2006. (Lodgment 2 at 6 (date of signature). During 14 this period, eleven days of the limitations period elapsed. Nino v. Galaza, 183 F.3d 1003, 1006 (9th 15 Cir. 1999) (no tolling applies until the filing of a state petition). 16 17 2. Statutory Tolling Applies From May 12, 2006, To June 29, 2006

Stevenson's first state habeas corpus petition was pending in the court of appeal, and he

18 is entitled to statutory tolling, from May 12, 2006 (the date of constructive filing), up to the date of 19 decision on June 29, 2006 (Lodgment 3). 28 U.S.C. § 2244(d)(2). 20 21 3. No Tolling Applies During The Interval Between His Two State Petitions

After the court of appeal denied the first state petition, a period of about nine months

22 passed before Stevenson filed his second state petition. Although tolling for such intervals may 23 apply to California petitioners, such interval tolling applies only if the petitioner proceeds to the next 24 court without unreasonable delay. Evans v. Chavis, 546 U.S. 189, 126 S. Ct. 846, 854, 163 L. Ed. 25 2d 684 (2006); Gaston v. Palmer, 447 F.3d 1165 (9th Cir. 2006). In Evans v. Chavis, the United 26 27 6. The operative knowledge is of the important facts, not their legal significance. Hasan v. 28 Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Stevenson knew the facts of his sentence and of his counsel's representation before his conviction was final.
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1 States Supreme Court suggested that a reasonable period would be thirty to sixty days. 126 S. Ct. 2 at 854. 3 Stevenson's delay of nearly nine months is unreasonable. This precludes interval tolling

4 between his two state petitions. Accordingly, no tolling applies from June 29, 2006, up to the date 5 he constructively filed his second state petition, on March 13, 2007. (Lodgment 4.) During this 6 period, another 256 days of the limitations period elapsed. Added to the earlier period of eleven 7 elapsed days, a total of 267 days of the limitations period had been consumed, leaving only ninety8 eight days within which Stevenson could file a timely petition. 9 10 11 The California Supreme Court denied Stevenson's last state petition on June 13, 2007. 4. The Limitations Period Expired Between The Time From The Denial Of His Last State Petition And The Filing Of The Current Federal Petition

12 (Lodgment 5.) No statutory tolling applies to the time following that denial and the filing of his 13 federal Petition, because no state petitions were properly pending during that time. 28 U.S.C. § 14 2244(d); see Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). Accordingly, no tolling could apply 15 from June 14, 2007, until the current Petition was constructively filed on June 10, 2008. (Pet. at 10.) 16 This period lasted 362 days. But, since Stevenson had only ninety-eight days remaining

17 in the limitations period, the statute of limitations expired several months before the current Petition 18 was filed. 19 20 C. Stevenson Is Not Entitled To Equitable Tolling Although the United States Supreme Court has not determined whether equitable tolling

21 may apply in § 2254 cases, the Ninth Circuit has found such tolling to be applicable in rare cases. 22 But, before equitable tolling may be considered, a petitioner must establish at least two elements "(1) 23 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 24 in his way." Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace v.

25 DiGuglielmo, 544 U.S. at 408); Gaston v. Palmer, 417 F.3d at 1034. 26 Stevenson has made no claim for equitable tolling, and no basis for such tolling is

27 apparent. Indeed, the lengthy intervals between his petitions demonstrate a lack of diligence, which 28 precludes the application of equitable tolling. Accordingly, the current Petition is untimely.
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CONCLUSION For the foregoing reasons, Respondent respectfully requests that this Court deny the

3 Petition with prejudice as untimely and deny any future request for a certificate of appealability. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: September 3, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ERIKA HIRAMATSU Deputy Attorney General

s/Kevin Vienna KEVIN VIENNA Supervising Deputy Attorney General Attorneys for Respondent

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 ERIKA HIRAMATSU Deputy Attorney General 5 KEVIN VIENNA, State Bar No. 186751 Supervising Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2198 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 These copies are being provided for the use of the Court pursuant to this Court's July 1, v. DERRAL G. ADAMS, Warden, Respondent. GENGHIS KHAN ALI STEVENSON, Petitioner, 08cv1126 W (LSP) NOTICE OF LODGMENT IN 28 U.S.C. § 2254 HABEAS CORPUS CASE To Be Sent To Clerk's Office IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 2008 Order. The documents being lodged under this Notice by Respondent are: 24 25 26 27 28 ///
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Trial court records, People v. Stevenson, case number JCF16209; Petition for Writ of Habeas Corpus, case number D048642; Order Denying Petition, case number D048642; Petition for Writ of Habeas Corpus, case number S149105;

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Order Denying Petition, case number S149105.

Dated: September 3, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ERIKA HIRAMATSU Deputy Attorney General

s/Kevin Vienna KEVIN VIENNA Supervising Deputy Attorney General Attorneys for Respondent

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