Young v. BACA

          ORDER

         This counseled habeas petition pursuant to 28 U.S.C. § 2254 comes before the court on respondents' motion to dismiss the petition as untimely, procedurally defaulted, and unexhausted in part (ECF No. 43). Petitioner has opposed (ECF No. 64), and respondents have replied (ECF No. 65).

         Petitioner challenges his 2006 state court judgment of conviction, following a jury trial at which he represented himself, of four counts of murder in the first degree with use of a deadly weapon and ten other associated counts, including kidnapping, burglary, robbery, and conspiracy to commit murder. (Ex. 287).^[1]Judgment of conviction was entered on August 3, 2006. (Ex. 310). Because petitioner did not file a direct appeal, his conviction became final thirty days later, on September 5, 2006.^[2]

         On December 12, 2006, petitioner filed a state postconviction petition, which was dismissed as unverified and not in compliance with the court's form. (Exs. 318 & 325). Before it was dismissed, petitioner filed a second petition on February 27, 2007. (Ex. 324). That petition was denied on December 3, 2007, on the grounds that the claims could have been raised on direct appeal. (Ex. 336). Petitioner did not appeal either order.

         In August 2008, petitioner filed a “motion to appoint counsel to my direct appeal.” (Ex. 338). The motion was granted on November 9, 2008, and Lisa Rasmussen was appointed “for the purpose of filing either a direct appeal or a petition for post-conviction relief, whichever she deems appropriate under the circumstances.” (Ex. 341).

         For the next five years, virtually nothing happened.^[3] Then, in March 2014, petitioner filed a motion for appointment of new counsel. (Ex. 343). The court denied the motion. (Ex. 346). Although petitioner attempted to appeal, the appeal was dismissed for lack of jurisdiction. (Exs. 347 & 351).

         Then, on September 22, 2015, petitioner filed another state postconviction petition for habeas relief. (Pet. Ex. 52). Petitioner proceeded to file several amended petitions and, when those were denied, appeals thereof. (See Exs. 357, 358, 361, 366, 367, 370, 374, 376, ^[4] 396, 405, 407, 424, 425, 431, 440, 449, 458).^[5]Ultimately, the petitions were denied as untimely, successive, and due to laches. (Exs. 423, 427, 441, 461).

         On February 14, 2017, petitioner filed his original petition for federal habeas relief. (ECF No. 1-1 at 2). Following the court's order, he filed an amended petition. The court appointed counsel, who filed a second amended petition. Respondents now move to dismiss the second amended petition as untimely, procedurally defaulted, and unexhausted in part.

         Timeliness

         Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless otherwise tolled or subject to delayed accrual, begins running after “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such direct review.” The federal limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).

         The petition is untimely on its face because it was filed more than eight years after the expiration of the federal statute of limitations. Between the date petitioner's conviction became final and the date he initiated timely state postconviction proceedings, nearly three months elapsed. Thus, after proceedings concluded, petitioner had a little more than nine months to file his federal petition. Because petitioner did not appeal the denial of his petitions, postconviction proceedings terminated on the last day to file an appeal, or on January 2, 2008. Absent tolling or other delayed accrual, the statute of limitations expired in October 2008. The instant petition was filed in February 2017, more than eight years after the expiration of the statute of limitations.

         Petitioner, while conceding the facial untimeliness of the petition, argues that he is entitled to equitable tolling. Petitioner relies principally on his mental health status during the relevant times periods, but also asserts ineffective assistance of, or abandonment by, postconviction counsel. Petitioner requests an evidentiary hearing to the extent the evidence presented in support of equitable tolling is found to be lacking.

         Having reviewed the pleadings and the relevant record evidence, the court concludes that petitioner's tolling argument has not been sufficiently developed for a decision to be rendered at this time. The question of whether petitioner's mental health affected his ability to timely file is complicated. In the interest of judicial economy, the court defers a resolution of the timeliness question until it has had an opportunity to also consider the merits of petitioner's claims, because if, in the end, the merits are less complicated than the issues of timeliness, the court may elect to simply address the merits instead. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); Day v. McDonough, 547 U.S. 198, 208-209 (2006). The deferral of this question will also allow petitioner additional time to seek or present whatever evidence necessary to support his claim of equitable tolling, including but not limited to formally requesting an evidentiary hearing by way of a separately filed motion.

         The motion to dismiss the petition as untimely will therefore be ...