Danny Ruiz v. Fernando Gonzalez, No. 5:2009cv00627 - Document 24 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED THAT Judgment be entered dismissing the petition and action as untimely. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 DANNY RUIZ, ) Case No. EDCV 09-0627-RC ) Petitioner, ) vs. ) ) OPINION AND ORDER ON A FERNANDO GONZALEZ, WARDEN (A),) PETITION FOR HABEAS CORPUS ) Respondent. ) ) Effective March 7, 2009, petitioner Danny Ruiz, a state inmate 17 proceeding pro se, filed a habeas corpus petition under 28 U.S.C. 18 § 2254, and on May 18, 2009, respondent filed a motion to dismiss the 19 petition, arguing it is untimely. 20 filed his opposition to the motion to dismiss. 21 consented to this Court to conduct all proceedings pursuant to 28 22 U.S.C. § 636(c). On September 29, 2009, petitioner The parties have 23 24 BACKGROUND 25 On May 5, 1998, the People filed an information in San Bernardino 26 County Superior Court case no. FVA09446, charging petitioner1 with one 27 1 28 The petitioner was charged with codefendants Luciano Hernandez, Sergio Castillo, and Gary Castor Kirby. Lodgment no. 1 count of attempted, willful premeditated murder in violation of 2 California Penal Code ( P.C. ) §§ 664/187(a) (count 1), one count of 3 attempted second degree robbery in violation of P.C. §§ 664/211 (count 4 2), and one count of unlawful driving or taking of a vehicle in 5 violation of California Vehicle Code § 10851(a)(3), and as to counts 1 6 and 2, it was further charged that petitioner personally used a 7 firearm within the meaning of P.C. § 12022.53(b), petitioner 8 personally inflicted great bodily injury upon an individual not an 9 accomplice within the meaning of P.C. § 12022.7(a), and the crimes 10 were committed for the benefit and in association with a criminal 11 street gang with the specific intent to promote criminal conduct by 12 gang members within the meaning of P.C. § 186.22(b)(4). 13 8 at 1-5. 14 agreement, petitioner pleaded guilty to, and was convicted of, the 15 lesser-included offense of attempted murder without premeditation in 16 violation of P.C. §§ 664/187 (count 1), and petitioner admitted that 17 during the course of the offense he personally used a firearm and 18 inflicted great bodily injury within the meaning of P.C. § 19 12022.53(c). 20 trial court sentenced petitioner to the stipulated total term of 29 21 years in state prison, and suspended imposition of the sentence on the 22 condition petitioner serve one year in the county jail (he was given 23 credit for having served 331 days) and be on probation for five years. 24 Lodgment nos. 1, 9 at 14:16-18:3. 25 conviction or sentence. 26 // On February 9, 1999, pursuant to a stipulated written plea Lodgment no. 9 at 5:28-6:8. On March 11, 1999, the The petitioner did not appeal his Petition at 2. 27 28 Lodgment no. 8 at 1-5. 2 1 On October 24, 2000, petitioner admitted he violated probation, 2 and the trial court revoked his probation and imposed the previously 3 suspended sentence of 29 years in state prison. 4 76-77. Lodgment no. 8 at 71, 5 6 On or about June 16, 2008, petitioner filed a habeas corpus 7 petition in the San Bernardino County Superior Court, claiming his 8 plea bargain agreement was not honored, and on July 3, 2008, the 9 Superior Court denied the petition. Lodgment no. 2. On July 16, 10 2008, petitioner filed a habeas corpus petition in the California 11 Court of Appeal, which denied the petition on August 13, 2008. 12 Lodgment nos. 3-4. 13 corpus petition in the California Supreme Court, which denied the 14 petition on February 11, 2009. On August 21, 2008, petitioner filed a habeas Lodgment nos. 5-6. 15 DISCUSSION 16 17 The Antiterrorism and Effective Death Penalty Act of 1996 18 ( AEDPA ) established a one-year period of limitations for federal 19 habeas petitions filed by state prisoners, Bryant v. Arizona Attorney 20 Gen., 499 F.3d 1056, 1059 (9th Cir. 2007), as follows: 21 22 (1) A 1-year period of limitation shall apply to an 23 application for a writ of habeas corpus by a person in 24 custody pursuant to the judgment of a State court. 25 limitation period shall run from the latest of The 26 (A) the date on which the judgment became final by the 27 conclusion of direct review or the expiration of the 28 time for seeking such review. . . . 3 1 (D) the date on which the factual predicate of the 2 claim or claims presented could have been 3 discovered through the exercise of due diligence. 4 (2) The time during which a properly filed application for 5 State post-conviction or other collateral review with 6 respect to the pertinent judgment or claim is pending shall 7 not be counted toward any period of limitation under this 8 subsection. 9 10 28 U.S.C. § 2244(d). 11 12 The petitioner did not appeal his conviction, sentence, or 13 probation revocation to the California Court of Appeal, and the 14 conviction became final no later than 60 days after petitioner s 15 probation was revoked on October 24, 2000.2 See former California 16 17 18 19 20 21 22 23 24 25 26 27 28 2 To the extent the pending habeas corpus petition challenges the trial court s judgment imposing probation, the statute of limitations began to run when the judgment imposing probation became final, Caldwell v. Dretke, 429 F.3d 521, 529-30 (5th Cir. 2005), cert. denied, 549 U.S. 970 (2006) and 549 U.S. 993 (2006), which occurred 60 days after petitioner was sentenced on March 11, 1999. However, to the extent the pending petition can be read as challenging the revocation of petitioner s probation, the limitations period did not begin to run until the probation revocation became final. Davis v. Purkett, 296 F. Supp. 2d 1027, 1029-30 (E.D. Mo. 2003). Similarly, petitioner s claim of breach of plea agreement began to run no later than the date his probation revocation became final, since by that point, petitioner certainly could have discovered the factual predicate of his claim. 28 U.S.C. § 2244(d)(1)(D); see also Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003) ( [T]he date of the factual predicate for [petitioner s] claim under § 2244(d)(1)(D) . . . is determined . . . by inquiring when [petitioner] could have learned of the factual basis for his claim through the exercise of due diligence. ); Connelly v. 4 1 Rules of Court, Rule 31(d) (2000);3 Lewis v. Mitchell, 173 F. Supp. 2d 2 1057, 1060 (C.D. Cal. 2001); People v. Coleman, 13 Cal. 3d 867, 871 3 n.1, 120 Cal. Rptr. 384, 389-90 n.1 (1975) ( An order revoking 4 probation is appealable as an order made after judgment affecting a 5 defendant s substantial rights. ). 6 of limitations began to run no later than December 27, 2000,4 and 7 expired no later than December 26, 2001. 8 filed until more than seven years after the statute of limitations had 9 run; thus, it is untimely. Thus, for petitioner, the statute The instant action was not 10 11 Since petitioner s recent state habeas corpus petitions were 12 filed in 2008, after the statute of limitations expired, they neither 13 toll nor revive the expired limitations period. 14 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003); 15 Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000). Jiminez v. Rice, 276 16 17 18 There also is no basis for this Court to equitably toll the AEDPA s statute of limitations. A habeas petitioner is entitled to 19 20 21 22 23 24 25 Mendoza-Powers, 226 Fed. Appx. 679, 681 (9th Cir. 2007) (applying Section 2244(d)(1)(D) to petitioner s breach of plea agreement claim). 3 Effective January 1, 2004, the substance of former Rule 31(d) was moved to former Rules 30(b) and 30.1(a), Earls v. Hernandez, 403 F. Supp. 2d 985, 988 n.3 (C.D. Cal. 2005), and these rules were renumbered as Rules 8.304(b) and 8.308(a) effective January 1, 2007. 4 26 27 28 December 23, 2000, the sixtieth day after October 24, 2000, was a Saturday, and December 25, 2000, was a holiday, so December 26, 2000 was the final day for petitioner to timely file a notice of appeal. California Code of Civ. Proc. § 12a(a); former California Rules of Court, Rule 45(a) (2003); Lopez v. Felker, 536 F. Supp. 2d 1154, 1156-57 & n.3 (C.D. Cal. 2008). 5 1 equitable tolling only if extraordinary circumstances beyond a 2 prisoner s control make it impossible to file a petition on time. 3 Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citation and 4 internal quotation marks omitted); Espinoza-Matthews v. People of the 5 State of Cal., 432 F.3d 1021, 1026 (9th Cir. 2005). 6 bears the burden of proving: (1) that he has been pursuing his rights 7 diligently, and (2) that some extraordinary circumstance stood in his 8 way. 9 161 L. Ed. 2d 669 (2005); Mendoza v. Carey, 449 F.3d 1065, 1068 (9th The petitioner Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 10 Cir. 2006). Additionally, the prisoner must show that the 11 extraordinary circumstances were the but-for and proximate causes of 12 his untimeliness. 13 2003) (citations and internal quotation marks omitted); Roy v. 14 Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied sub nom., 15 Belleque v. Kephart, 549 U.S. 1317 (2007). 16 that despite his guilty plea, he is actually innocent of the crime of 17 which he was convicted.5 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. Here, petitioner contends See Petition at 5. 18 5 19 20 21 22 23 24 25 26 27 28 Although petitioner pleaded guilty, he can nevertheless maintain an actual innocence claim. Bousley v. United States, 523 U.S. 614, 623-24, 118 S. Ct. 1604, 1611-12, 140 L. Ed. 2d 828 (1998); see also Lisker v. Knowles, 463 F. Supp. 2d 1008, 1040 (C.D. Cal. 2006) ( [T]he mere existence of the guilty plea itself is not conclusive. The Supreme Court in Bousley specifically authorized consideration of a Schlup [v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)] claim in the face of a guilty plea. ). Of course, this Court must consider petitioner s guilty plea in determining whether petitioner can meet the Schlup standard. See Doe v. Menefee, 391 F.3d 147, 163 (2d Cir. 2004) ( Schlup recognizes that the reviewing court must do more than reenact a trial of the petitioner; it must be free to evaluate independently all of the evidence, old and new, to . . . analyze the petitioner s potential innocence in light of the fact that the petitioner is essentially claiming that the criminal justice process has reached the wrong factual result, whether after a trial or a guilty plea. ), cert. denied, 546 U.S. 961 (2005); 6 1 An actual innocence claim may constitute an extraordinary 2 circumstance warranting equitable tolling, see, e.g., Souter v. 3 Jones, 395 F.3d 577, 599 (6th Cir. 2005) ( [E]quitable tolling of the 4 one-year limitations period based on a credible showing of actual 5 innocence is appropriate. ); Gibson v. Klinger, 232 F.3d 799, 808 6 (10th Cir. 2000) ( Equitable tolling would be appropriate . . . when a 7 prisoner is actually innocent. . . . .), or act as an exception to the 8 statute of limitations. 9 890 n.5 (9th Cir. 2003) (Petitioner s actual innocence claim is not 10 in itself a constitutional claim, but would serve only to remove the 11 timeliness bar so that claims may be heard on the merits. ), cert. 12 denied, 540 U.S. 1208 (2004). 13 actual innocence] claim requires petitioner to support his allegations 14 . . . with new reliable evidence . . . that was not presented at 15 trial[,] and to show that it is more likely than not that no 16 reasonable juror would have found petitioner guilty beyond a 17 reasonable doubt. 18 867; Calderon v. Thompson, 523 U.S. 538, 559, 118 S. Ct. 1489, 1503, 19 140 L. Ed. 2d 728 (1998); Griffin v. Johnson, 350 F.3d 956, 963 (9th 20 Cir. 2003), cert. denied, 541 U.S. 998 (2004). 21 innocence means factual innocence, not mere legal insufficiency. 22 Bousley, 523 U.S. at 623-24, 118 S. Ct. at 1611. See United States v. Zuno-Arce, 339 F.3d 886, In either event, [t]o be credible, [an Schlup, 513 U.S. at 324, 327, 115 S. Ct. at 865, Moreover, actual 23 24 To support his actual innocence claim, petitioner proffers an 25 26 27 28 cf. United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir. 1993) ( Statements made by a criminal defendant contemporaneously with his [guilty] plea should be accorded great weight because solemn declarations made in open court carry a strong presumption of verity. (citations and internal punctuation omitted)). 7 1 unsworn statement purportedly made in 1998 by the attempted murder 2 victim, Jaime Marquez. 3 competent evidence, and it fails to raise a viable actual innocence 4 claim. 5 perjury or notarized, is not reliable. 6 ( Because Schlup explicitly states that the proffered evidence must be 7 reliable, the habeas court must determine whether the new evidence is 8 trustworthy by considering it both on its own merits and, where 9 appropriate, in light of the pre-existing evidence in the record. ). 10 Second, petitioner has not explained his lengthy delay in presenting 11 this evidence to the Court. 12 1815 ( Under long-established principles, petitioner s lack of 13 diligence precludes equity s operation. ); Welch v. Carey, 14 350 F.3d 1079, 1083 (9th Cir. 2003) (en banc) ( Tolling accommodates 15 effort, not inaction. ), cert. denied, 541 U.S. 1078 (2004). 16 even setting these problems aside, and taking the document at face 17 value, it does not establish petitioner s factual innocence since the 18 victim merely states he does not know who shot him, but believes 19 someone named Mark might have, and this clearly is insufficient to 20 satisfy the threshold showing under Schlup. . . . 21 452 F.3d 1234, 1246 (11th Cir. 2006), modified by, 459 F.3d 1310 (11th 22 Cir. 2006), cert. denied, 549 U.S. 1338 (2007); see also Melson v. 23 Allen, 548 F.3d 993, 1003 (11th Cir. 2008) (affidavit that does not 24 exonerate petitioner is unconvincing and insufficient to satisfy 25 Schlup threshold), pet. for cert. filed, (July 16, 2009); Hayman v. 26 Commonwealth of Pa., 624 F. Supp. 2d 378, 394-95 (E.D. Pa. 2009) 27 (petitioner does not demonstrate he is entitled to equitable tolling 28 based on claim of actual innocence when he presents no new evidence Petition at 23-25. This document is not First, the document, which is not signed under penalty of See Doe, 391 F.3d at 161 See Pace, 544 U.S. at 419, 125 S. Ct. at 8 Third, Arthur v. Allen, 1 that would have altered his decision to plead guilty and does not 2 explain why he waited over ten years before raising his claim on 3 habeas corpus). 4 statute of limitations should be equitably tolled, and his habeas 5 corpus petition is determined to be untimely. For all these reasons, petitioner has not shown the 6 7 ORDER 8 9 IT IS ORDERED THAT Judgment be entered dismissing the petition and action as untimely. 10 11 DATE: October 2, 2009 12 13 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&Rs-MDOs\09-0627.mdo 10/2/09 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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