(HC) Eberly v. Neuschmid

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GARY ALAN EBERLY, No. 2:19-CV-1631-MCE-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT NEUSCHMID, 15 Respondent. [16] 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 . Pending before the Court is respondent’s motion to 19 dismiss (ECF No. 9). Respondent contends the petition is untimely. [20] 21 I. BACKGROUND 22 Petitioner Gary Alan Eberly was convicted in Sacramento County Superior Court 23 of first-degree murder. See ECF No. 1, p. 2. On February 26, 2016, petitioner was sentenced to an 24 indeterminate state prison term of twenty-five years to life with possibility of parole. Id. 25 Petitioner appealed his conviction. The California Court of Appeal affirmed the judgment on 26 October 30, 2017. See ECF No. 1, p. 2. The California Supreme Court denied review on January 27 24, 2018. Id. 28 /// 1 Petitioner filed three pro se state post-conviction collateral actions, all of which 2 were petitions for writs of habeas corpus. See ECF No. 1, pp. 2-5; ECF No. 10, Attach. #6, p. 1. 3 First Action Sacramento County Superior Court. Filed August 17, 2016. 4 Denied October 20, 2016. 5 Second Action Sacramento County Superior Court. Filed April 25, 2018. 6 Denied June 19, 2018. 7 Third Action California Supreme Court. Filed April 20, 2019. 8 Denied July 17, 2019. 9 Petitioner’s federal petition was filed on August 20, 2019. Id. [10] 11 II. DISCUSSION 12 Federal habeas corpus petitions must be filed within one year from the later of: 13 (1) the date the state court judgment became final; (2) the date on which an impediment to filing 14 created by state action is removed; (3) the date on which a constitutional right is newly15 recognized and made retroactive on collateral review; or (4) the date on which the factual 16 predicate of the claim could have been discovered through the exercise of due diligence. See 28 17 U.S.C. § 2244 (d). Typically, the statute of limitations will begin to run when the state court 18 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 19 review. See 28 U.S.C. § 2244 (d)(1). 20 Where a petition for review by the California Supreme Court is filed and no 21 petition for certiorari is filed in the United States Supreme Court, the one-year limitations period 22 begins running the day after expiration of the 90-day time within which to seek review by the 23 United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 24 Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year 25 limitations period begins to run the day after certiorari is denied or the Court issued a merits 26 decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for 27 review by the California Supreme Court is filed, the conviction becomes final 40 days following 28 the Court of Appeal’s decision, and the limitations period begins running the following day. See 1 Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the 2 conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the 3 limitations period begins running the following day. See Cal. Rule of Court 8.308(a). If the 4 conviction became final before April 24, 1996 – the effective date of the statute of limitations – 5 the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. 6 Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). 7 The limitations period is tolled, however, for the time a properly filed application 8 for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244 (d)(2). To be 9 “properly filed,” the application must be authorized by, and in compliance with, state law. See 10 Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. 11 DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a 12 state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions 13 and the failure to comply with those time limits precludes a finding that the state petition is 14 properly filed). A state court application for post-conviction relief is “pending” during all the 15 time the petitioner is attempting, through proper use of state court procedures, to present his 16 claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered 17 “pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549 18 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari 19 petition to the Supreme Court was pending). Where the petitioner unreasonably delays between 20 state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, [21] 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as 22 untimely, the federal court must independently determine whether there was undue delay. See id. 23 at 226-27. 24 There is no tolling for the interval of time between post-conviction applications 25 where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 26 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no 27 tolling for the period between different sets of post-conviction applications. See Biggs v. 28 /// 1 Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct 2 review and the filing of a state post-conviction application does not toll the limitations 3 period. See Nino, 1983 F.3d at 1006-07. 4 A. The Limitations Period Begins 5 Petitioner did not seek certiorari in the United States Supreme Court after the 6 California Supreme Court denied his petition for review on January 24, 2018. Thus, the one-year 7 limitations period commenced on April 25, 2018—the day after the ninety-day period to file a 8 petition for writ of certiorari with Untied States Supreme Court expired. See Patterson, 251 F.3d 9 at 1246 . Absent tolling, petitioner’s federal habeas complaint was due by April 25, 2019. 10 B. Tolling 11 As respondent correctly notes, petitioner’s first direct state action had no effect on 12 the limitations period. Petitioner filed his first state action on August 17, 2016, and was denied on 13 October 20, 2016. See ECF No. 10, Attach. #6, p.1. Petitioner’s filing and denial both occurred 14 before direct review became final on January 24, 2018. See ECF No. 1, p. 2. Collateral actions 15 filed before the limitation period commences have no tolling consequences. Waldrip v. Hall, 548 16 F.3d 729, 735 (9th Cir. 2008). Therefore, the time during which this action was pending had no 17 effect on the statute of limitations because the limitation period had not yet commenced. 18 Respondent also correctly notes that petitioner’s second state action tolled the 19 limitations period. Petitioner timely filed his second direct state action on April 25, 2018. See 20 ECF No. 1, p. 2. Thus, the limitation period began to run on June 19, 2018 when petitioner’s 21 second direct state habeas petition was denied. 22 Citing Evans v. Chavis, 546 U.S. 189, 201 (2006), respondent argues that 23 petitioner unreasonably delayed seeking review of the state superior court’s denial of his second 24 petition by waiting 305 days after the denial to file the third state court action. Respondent 25 contends that because petitioner unreasonably delayed seeking further review, his third petition 26 was not properly pending under U.S.C. § 2244(d)(2). Citing Pace, 544 U.S. at 414 , respondent 27 also argues that the limitations period continued to run both (1) on the days before the untimely28 under-state-law third action and (2) on the days that the untimely-under-state-law third action was 1 on file. 2 Petitioner does not address his 305-day filing delay. Instead, petitioner claims that 3 the judgment in his criminal case was void because only private citizens can bring a claim for a 4 felony. Petitioner argues that because the felony charge was not correctly brought to court, the 5 Sacramento County Superior Court did not have jurisdiction over him. Thus, petitioner contends 6 that his third state action was timely because limitations claims do not apply to void judgments. 7 Petitioner also argues that he should be entitled to a statute of limitations exception due to a 8 miscarriage of justice. 9 The Court finds that petitioner’s filing of his third state court post-conviction 10 action was untimely due to an unreasonable 305-day delay and, therefore, petitioner is not entitled 11 to tolling for the period between the denial of his second state action and filing of his third state 12 action. The Court also finds that petitioner is not entitled to tolling for the period between the 13 filing of petitioner’s third state action and the denial of that action due to the untimely file. 14 Petitioner’s arguments are flawed for multiple reasons. First, petitioner’s claim 15 that the judgment in his case is void is inaccurate. Petitioner’s reliance on Serna v. Superior 16 Court, 40 Cal. 3d 239 (1985), is misguided. The Serna court’s assertion that felony complaints do 17 not confer immediate trial jurisdiction signified that a defendant must go before a magistrate 18 judge to determine whether probable cause exists to charge him with a felony. See Serna, 40 Cal. 19 3d at 257. The Serna court did not state that trial courts have no jurisdiction over felony 20 complaints at any time. Superior courts gain jurisdiction after a filing of an information. See 21 People v. Leonard, 228 Cal. App. 4th 465, 482 (2014). Here, petitioner went before a magistrate 22 judge who found sufficient cause for petitioner’s guilt. See ECF No. 10, Attach. #7, pp. 20-1. The 23 felony complaint against petitioner therefore became an information. Id. Sacramento County 24 Superior Court had jurisdiction over petitioner’s case. Thus, petitioner’s argument that the court’s 25 judgment is void is meritless. 26 /// 27 /// 28 /// 1 Second, petitioner’s assertion that only private citizens can file felony charges is 2 incorrect. In fact, private citizens lack the authority to bring criminal charges. See Linda R.S. v. 3 Richard D., 410 U.S. 614, 619 (1973). Petitioner’s reliance on Attorney General Lockyer’s 4 statement that “the government may not even be involved in the preparation, investigation, and 5 filing of a felony complaint” is misguided. See ECF No. 11, p. 3 (quoting People v. Viray, 134 6 Cal. App. 4th 1186 , 1200 (2005)). The Viray court discredited Attorney General Lockyer’s 7 statement on the basis that established caselaw directly contradicted his claim. See People v. 8 Viray, 134 Cal App. 4th at 1201-02. Thus, petitioner cannot rely on this claim to support his case. 9 Further, Attorney General Lockyer’s use of the term “may” meant he believed there could be 10 situations where the government was not involved in the preparation, investigation, and filing of a 11 felony complaint. Attorney General Lockyer never stated that the government lacked the 12 authority to be involved in the preparation, investigation, and filing of a felony. 13 Third, insofar as petitioner alleges that he is entitled to a statute of limitations 14 exception due to a fundamental miscarriage of justice, he is mistaken. The miscarriage of justice 15 exception is limited to “those extraordinary cases where the petitioner asserts his innocence and 16 establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. 17 Knowles, 541 F.3d 933, 937 (Ninth Cir., 2008). Without any new evidence of innocence, the 18 existence of even a meritorious constitutional violation cannot establish that a miscarriage of 19 justice exception would allow an otherwise barred claim to succeed. See Schlup v. Delo, 513 U.S. 20 298, 316 (1995). Here, petitioner does not introduce any new evidence of his innocence and his 21 argument centers around the alleged procedural violations that occurred in his criminal case. 22 Thus, he is not entitled to a statute of limitations exception on the grounds of a fundamental 23 miscarriage of justice. 24 Petitioner does not provide any explanation for his delay besides his argument that 25 statutory tolling does not apply to his case, which, as previously discussed, is meritless. As 26 demonstrated by recent cases, the Ninth Circuit has made it common practice to hold firm to a 27 thirty- or sixty- day period for filing subsequent state actions absent a showing of a proper excuse 28 for delay. See Livermore v. Watson, 556 F. Supp. 2d 1112, 1118-20 (E.D. Cal. 2008) (holding 1 that the four-and-a-half-month delay in Saffold was not deemed to be reasonable, and that an 2 interval of seventy-eight days between filings was not entitled to statutory tolling since it was not 3 timely); Bennett v. Felker, 635 F. Supp. 2d 1122, 1124-27 (C.D. Cal. 2009) (holding that ninety4 three days of unexplained delay in filing petition was “…substantially longer than the thirty or 5 sixty days contemplated by the Supreme Court in Evans, and is unjustified when Petitioner's third 6 petition was nearly identical to the one he filed in the lower court.” (italic removed). Petitioner’s 7 305-day delay extends far beyond this time period and thus was an unreasonable delay. 8 Additionally, petitioner is not entitled to any statutory tolling related to the third 9 state court action because he was not pursuing relief to the next highest state court. Petitioner’s 10 first two state court actions were filed in the trial court. The third state court action was filed in 11 the California Supreme Court, not the next higher court after the trial court which would be the 12 California Court of Appeal. 13 C. The Limitations Period Ends 14 As indicated above, by the time the state court denied petitioner’s untimely third 15 post-conviction action, a total of 393 days had elapsed (305 days through filing of the second 16 court action plus 88 days through the denial of the third state court action). An additional month 17 passed before petitioner filed his federal petition. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// wOAOe 2 LUV VEY ENS IN OUI LO PO ee OY OVI GO 1 I. CONCLUSION 2 Based on the foregoing, the undersigned recommends that respondent’s motion to 3 | dismiss (ECF No. 9) be granted. 4 These findings and recommendations are submitted to the United States District 5 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 363 (b)(1). Within 14 days 6 | after being served with these findings and recommendations, any party may file written 7 | objections with the court. Responses to objections shall be filed within 14 days after service of 8 | objections. Failure to file objections within the specified time may waive the right to appeal. See 9 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991), [10] 11 | Dated: June 18, 2020 Ssvcqo_ DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE