Adam Lashawn Collier v. Warran L. Montgomery

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [11] ADAM LASHAWN COLLIER, ) NO. CV 19-8675-DSF (AGR) [12] ) Petitioner, ) [13] ) ) [14] WARRAN L. MONTGOMERY, ) ORDER TO SHOW CAUSE Warden, ) [15] ) Respondent. ) [16] ) ) [18] On October 3, 2019, Petitioner constructively filed a Petition for Writ of [19] Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 20 2254. For the reasons set forth below, it appears the Petition is untimely and [21] contains fully unexhausted grounds for relief. The court orders Petitioner to show [22] cause, on or before November 25, 2019, why the court should not recommend [23] dismissal of the Petition with prejudice as barred by the statute of limitations. [28] 1 I. 2 PROCEDURAL BACKGROUND 3 Petitioner states that he was convicted of second degree robbery on July 4 10, 2012 in Case No. NA092184.1 (Petition at 2, 4.) The online docket for Los 5 Angeles County Superior Court Case No. NA092184 indicates Petitioner pled 6 nolo contendere to violations of Cal. Penal Code § 211 in Counts 1 and 3 on July 7 10, 2012. (See www.lacourt.org/criminalcasessummary for Case No. 8 NA092184.) Petitioner was sentenced to state prison for 10 years on Count 1 9 and two years on Count 3 on July 10, 2012. Petitioner states that he did not file 10 an appeal. (Petition at 2-3.) 11 Petitioner states that he filed a state habeas petition that was denied by the 12 Superior Court. (Id. at 3-4.) The Superior Court’s online docket indicates 13 Petitioner filed the state habeas petition on September 5, 2018 and the court 14 denied it on September 7, 2018. (See www.lacourt.org/criminalcasessummary 15 for Case No. NA092184.) 16 Petitioner states that he filed a state habeas petition that was denied by the 17 California Court of Appeal. Petitioner filed a state habeas petition on October 3, 18 2018 in Case No. B292991. (Petition at 4.) The California Court of Appeal 19 summarily denied the petition on October 17, 2018. (See 20 www.appellatecases.courtinfo.ca.gov/search/case/dockets for Case No. 21 B292991.) 22 Petitioner states that he filed a state habeas petition that was denied by the 23 California Supreme Court. Petitioner filed the state habeas petition on December 24 10, 2018 in Case No. S253008. IPetition at 4.) The California Supreme Court 25 summarily denied the petition on May 15, 2019. (Id. at 5); In re Collier, 2019 Cal. 26 [27] 1 Petitioner identifies the trial case number as S253008. Case number 28 S253008, however, is Petitioner’s case number for his state habeas petition in the California Supreme Court. 1 LEXIS 3292 (May 15, 2019). 2 On October 3, 2019, Petitioner constructively filed the instant Petition with 3 this court. (Dkt. No. 1). 4 II. 5 STATUTE OF LIMITATIONS 6 The Petition was filed after enactment of the Antiterrorism and Effective 7 Death Penalty Act of 1996 (“AEDPA”) on April 24, 1996. Therefore, the court 8 applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336 , [9] 117 S.Ct. 2059, 2068 , 138 L.Ed.2d 481 (1997). 10 The AEDPA contains a one-year statute of limitations for a Petition for Writ 11 of Habeas Corpus filed in federal court by a person in custody pursuant to a 12 judgment of a state court. 28 U.S.C. § 2244 (d)(1). The one-year period starts 13 running on the latest of either the date when a conviction becomes final under 28 14 U.S.C. § 2244 (d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D). The court must 15 analyze the statute of limitations on a claim-by-claim basis. Mardesich v. Cate, [16] 668 F.3d 1164, 1171 (9th Cir. 2012). The burden of demonstrating that the 17 AEDPA’s one-year limitation period was sufficiently tolled, whether statutorily or 18 equitably, rests with the petitioner. See Pace v. DiGuglielmo, 544 U.S. 408 , 41719 18, 125 S.Ct. 1807 , 161 L.Ed. 2d 669 (2005). 20 A. The Date on Which Conviction Became Final – § 2244(d)(1)(A) 21 Petitioner was convicted and sentenced on July 10, 2012. (Petition at 2.) 22 Petitioner did not appeal. (Id. at 3-4.) Therefore, his conviction became final 60 23 days after the judgment, or September 10, 2012.2 Mendoza v. Carey, 449 F.3d 24 1065, 1067 (9th Cir. 2006). Absent tolling, the statute of limitations expired one 25 year later on September 10, 2013. Petitioner constructively filed the Petition on 26 October 3, 2019, over six years after the statute of limitations expired. Absent [27] 28 2 Because the 60th day fell on Saturday, September 8, the conviction became final on the next Monday, September 10, 2012. 1 tolling, the Petition is untimely. 2 1. Statutory Tolling 3 The statute of limitations is tolled during the time “a properly filed 4 application for State post-conviction or other collateral review with respect to the 5 pertinent judgment or claim is pending.” 28 U.S.C. § 2244 (d)(2). A state habeas 6 petition filed after the limitations period expired does not restart the running of the 7 statute of limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). 8 Therefore, Petitioner is not entitled to statutory tolling. 9 2. Equitable Tolling 10 A prisoner who files a federal habeas petition after the expiration of the 11 one-year statute of limitations may be entitled to equitable tolling. Holland v. 12 Florida, 560 U.S. 631, 649 (2010). “[A] ‘petitioner’ is ‘entitled to equitable tolling’ 13 only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that 14 some extraordinary circumstance stood in his way’ and prevented timely filing.” [15] Id. at 649 . (citations omitted.). “The diligence required for equitable tolling 16 purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’” Id. at 653 17 (citations and quotation marks omitted). The extraordinary circumstances must 18 have been the cause of an untimely filing. Grant v. Swarthout, 862 F.3d 914 , 19 918, 926 (9th Cir. 2017). Extraordinary circumstances do not toll a statute of 20 limitations that has already expired. Rudin v. Myles, 781 F.3d 1043 , 1056 n.16 21 (9th Cir. 2015). 22 There is no indication in the record that Petitioner is entitled to equitable 23 tolling. 24 B. Date of Discovery – 28 U.S.C. § 2244 (d)(1)(D) 25 The statute of limitations may also start to run on the date a petitioner 26 discovered (or could have discovered) the factual predicate for a claim. 28 27 U.S.C. § 2244 (d)(1)(D). The time starts to run when the petitioner knows or 28 through diligence could discover the factual predicate, not when the petitioner 1 realizes their legal significance. Hasan v. Galaza, 254 F.3d 1150 , 1154 n.3 (9th 2 Cir. 2001). 3 Petitioner raises one ground for relief. Petitioner contends that the court 4 imposed an unauthorized sentence because it used the high term of five years for 5 robbery instead of the mid-term of three years. Petitioner alleges a violation of 6 Cunningham v. California, 549 U.S. 270 (2007). 7 Petitioner knew or through diligence could discover the factual predicate of 8 his ground for relief — his allegedly unauthorized sentence — no later than the date his conviction became final on September 10, 2012. Petitioner does not contend 10 otherwise. The Petition remains untimely. 11 Hil. 12 ORDER TO SHOW CAUSE 13 IT IS THEREFORE ORDERED that, on or before November 25, 2019, 14 Petitioner shall show cause as to why the court should not recommend dismissal 15 of the Petition with prejudice as barred by the statute of limitations. 16 If Petitioner does not respond to this Order to Show Cause, the Magistrate 17 Judge will recommend that the Court dismiss the Petition with prejudice as barred 18 by the statute of limitations. [19] 2 Wbias A Kendra, 21 DATED: October 24, 2019 ALICIA G. ROSENBERG 22 United States Magistrate Judge