Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00485-JMA

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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 KYLE NIKI SHAFFER 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 Phillip Dunn challenges his stipulated thirteen-year sentence following a v. KEN CLARK, Warden, Respondent. PHILLIP W. DUNN, Petitioner, 08-cv-0485 BTM (JMA) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS ( No Hearing Required) The Honorable Jan M. Adler IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

23 negotiated guilty plea in 2003 and conviction for the crime of burglary. His Petition is untimely. 24 Dunn's conviction became final in April 2003. He did not appeal, and he brought no

25 collateral challenges to the judgment until 2007. By that time, the statute of limitations had long 26 expired. Accordingly, Respondent asks that the Petition be dismissed with prejudice. 27 In addition, as set forth below, Respondent consents to Magistrate Judge jurisdiction to

28 decide this matter.
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STATEMENT OF THE CASE In an information filed on September 30, 2002, the San Diego County District Attorney

3 charged Dunn with one count of residential burglary and one count of aggravated assault. 4 (Lodgment 1 (trial court records) (felony complaint and information).) The information further 5 alleged a number of prior convictions as sentence enhancements under various recidivist statutes, 6 including a prior kidnap conviction in 1993, which would serve as a five-year serious-felony prior 7 and also as a prior strike under California's Three Strikes law. (Id.) 8 Eventually, Dunn entered into a negotiated plea agreement, by which he agreed to plead

9 guilty to the burglary count and to admit the prior kidnaping conviction. In return, the parties 10 stipulated that the sentence would be a thirteen-year prison term, instead of the possible maximum 11 term of eighteen years that Dunn faced. (Lodgment 1 (plea agreement).) 12 Pursuant to the terms of the agreement, the trial court sentenced Dunn to the thirteen-year

13 term, comprising (1) the middle term of four years for the burglary, doubled because of the prior 14 strike to a term of eight years, and (2) a consecutive term of five years for the serious-felony prior 15 conviction. (Lodgment 1 (criminal minutes, 2/3/03) & abstract of judgment).) 16 Dunn did not appeal. (Pet. at 2.) Eventually, however, he brought a series of collateral

17 challenges against the judgment at all three levels of the state courts. Those challenges commenced 18 when, on April 16, 2007, he filed his first petition for writ of habeas corpus in the superior court. 19 (Lodgment 2.) The petition claimed that his sentence was unlawful because the same prior 20 conviction for kidnaping was used both to double his punishment under the Three Strikes law and 21 to authorize the five-year enhancement for a serious-felony prior. That petition was denied on 22 June 7, 2007. (Id.) 23 In the order denying the petition, the trial court explained that existing state precedent

24 clearly permitted both forms of increased punishment for the prior conviction. In addition, the court 25 also responded to a somewhat confusing portion of Dunn's petition that suggested he was 26 complaining that his sentence violated the principle recently set forth in the decision of the United 27 States Supreme Court in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 28 (2007). The court explained that the Cunningham decision, regarding California's procedure that
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1 permitted the trial court to impose upper terms based solely on judicial fact finding, could not apply 2 to him for two reasons. First, his conviction was final, and the rule in Cunningham could not be 3 applied retroactively. And second, Dunn had not received any upper-term sentence. (Id. at 2-3.) 4 Dunn then filed presumably identical petitions in the intermediate court of appeal and the

5 California Supreme Court. (Pet. at 4.) Those petitions were denied without comment or citation to 6 authority. (Lodgment 5, 6.) 7 Dunn raises the same issues in the Petition now pending before this Court. The Court has

8 directed Respondent to file a response. 9 10 STATEMENT OF FACTS The trial court records contain no description of Dunn's crime. Since his challenge relates

11 only to the sentence, the usual statement of facts is unnecessary and, therefore, omitted. 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 26, 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.1/ 20 21 22 23 24 25 26 27 28 1. 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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For Dunn, his state judgment became final at the expiration of the time period during

2 which he might have brought an appeal. In California, that is sixty days after proceedings have 3 concluded in the state trial court. Cal. Ct. R. 31(d); Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 4 (C.D. Cal. 2001). Since Dunn's judgment was entered on February 3, 2003, (Lodgment 1 (abstract 5 of judgment) his conviction became final sixty days later, on April 4, 2003. 6 The statute of limitations ordinarily commences on the day following finality, and it

7 normally would expire one year later, on April 4, 2004. Since Dunn did not constructively file2/ his 8 federal Petition until, at the earliest, March 13, 2008 (Pet. at 12 (date of signature)), the Petition is 9 untimely unless he is entitled to a later start date for the commencement of the limitations period or 10 unless he is entitled to sufficient tolling. Neither circumstance makes the current Petition timely. 11 12 A. Commencement Of The Limitations Period ­ No Later Start Date Applies Normally, the statute of limitations begins to run on the day following finality, Fed. R.

13 Civ. P. 6(a), unless one of three exceptions apply. 28 U.S.C. § 2244(d)(1)(B)-(D). None of the 14 exceptions applies to Dunn: there was no state impediment to his seeking further relief; his claims 15 do not rely on any new constitutional right determined by the United States Supreme Court to be 16 retroactive; and the factual predicate for his current claims ­ the nature of his sentence ­ was known 17 by the time his conviction was final.3/ 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.

2. Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), an incarcerated pro se prisoner's pleading is deemed filed at the moment of delivery to 25 prison officials. This mailbox rule has been extended to both state and federal habeas corpus 26 petitions for purposes of applying the AEDPA statute of limitations. See Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999). 27 3. 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). Dunn's claims all rely on facts that he knew at the time his judgment was final.
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Accordingly, the statute of limitations commenced on April 5, 2003, and would have

2 expired one year later, on April 4, 2004, absent tolling. As will be seen, Dunn is not entitled to any 3 statutory tolling, and he has not established a basis for equitable tolling. 4 5 B. Dunn Is Not Entitled To Statutory Tolling 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 Dunn is unable to demonstrate any statutory tolling. 9 No state petition was constructively filed until April 8, 2007. (Lodgment 2 at 6 (date of

10 signature).) This was three years after the expiration of the one-year limitations period. Since the 11 limitations period had expired, none of his three state petitions have a tolling effect. Ferguson v. 12 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 13 14 C. Dunn Is Not Entitled To Equitable Tolling Although the United States Supreme Court has not determined whether equitable tolling

15 may apply in § 2254 cases, the Ninth Circuit has found such tolling to be applicable in rare cases. 16 But, before equitable tolling may be considered, a petitioner must establish at least two elements "(1) 17 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 18 in his way." Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (quoting Pace, 544 U.S. at 19 408); Gaston, 417 F.3d at 1034. 20 Dunn has made no claim for equitable tolling, and no basis for such tolling is apparent.

21 Accordingly, the current Petition is untimely. 22 23 24 II. CONSENT TO MAGISTRATE JUDGE JURISDICTION Dunn has consented to magistrate jurisdiction over this proceeding. (Pet. at 11.)

25 Respondent hereby similarly consents. 26 /// 27 /// 28 ///
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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
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Dated: June 26, 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 KYLE NIKI SHAFFER Deputy Attorney General

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

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SD2008700326

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