Raul Joe Aldrete v. Christian Pfeiffer, No. 2:2018cv10800 - Document 27 (C.D. Cal. 2020)
Court Description: MEMORANDUM DECISION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (es)
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Raul Joe Aldrete v. Christian Pfeiffer Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAUL JOE ALDRETE, Petitioner, 12 v. 13 14 CHRISTIAN PFEIFFER, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 18-10800-JPR MEMORANDUM DECISION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE PROCEEDINGS 17 18 On December 12, 2018, Petitioner, proceeding pro se, 19 constructively filed a Petition for Writ of Habeas Corpus by a 20 Person in State Custody, raising a single claim: his 2000 21 conviction for discharging a firearm was “not a strikable 22 offen[s]e.” 23 to dismiss on June 20, 2019, and Petitioner opposed on March 20, 24 2020. (Pet. at 3; see also id. at 1-2.)1 Respondent did not file a reply. Respondent moved The parties consented to 25 26 27 28 1 The Ninth Circuit transferred the Petition to this Court after denying as unnecessary Petitioner’s application to file a second or successive petition in that he had not filed a prior petition pertaining to the 2000 conviction. 1 Dockets.Justia.com 1 the jurisdiction of the undersigned under 28 U.S.C. § 636(c)(1). 2 For the reasons discussed below, the Petition is denied as 3 untimely and because the Court lacks subject-matter jurisdiction, 4 and this action is dismissed with prejudice. 5 BACKGROUND 6 On August 17, 2000, Petitioner pleaded guilty in Los Angeles 7 County Superior Court to discharging a firearm with gross 8 negligence under former California Penal Code section 246.3 and 9 was sentenced to five years probation with one year in county 10 jail. (See Lodged Doc. 1 at 10; Pet. at 1-2; Opp’n at 3.) 11 Petitioner did not appeal. 12 http://appellatecases.courtinfo.ca.gov/ (search for “Aldrete” 13 with “Raul” in Second App. Dist. revealing no appeals filed after 14 1994) (last visited July 23, 2020); see also Opp’n at 3 15 (“[P]etitioner has never filed any appeal on this matter.”). See Cal. App. Cts. Case Info., 16 Subsequently, in 2013, a San Bernardino County jury 17 convicted him of assault with a firearm, willful infliction of 18 corporal injury on a cohabitant, and felon in possession of a 19 firearm. 20 Petitioner had been convicted of two prior strikes, including the 21 2000 discharging-a-firearm conviction. 22 sentenced to 37 years to life in state prison. 23 California Court of Appeal affirmed the judgment on June 19, 24 2015. 25 review. 26 courtinfo.ca.gov/ (search for “Aldrete” with “Raul” in supreme 27 court revealing no petition for review filed after 1995) (last 28 visited July 23, 2020). (Lodged Doc. 1 at 2.) (Id. at 1-2.) The trial court found true that (Id. at 2, 10.) He was (Id. at 2.) The Petitioner did not file a petition for See Cal. App. Cts. Case Info., http://appellatecases. 2 1 PETITIONER’S CLAIM 2 Petitioner’s 2000 conviction for discharging a firearm in a 3 grossly negligent manner should not count as a strike. 4 1, 3.) 5 6 7 (Pet. at DISCUSSION I. The Court Lacks Subject-Matter Jurisdiction Under § 2254(a), a federal court “shall entertain an 8 application for a writ of habeas corpus in behalf of a person in 9 custody pursuant to the judgment of a State court only on the 10 ground that he is in custody in violation of the Constitution or 11 laws or treaties of the United States.” 12 custody requirement “has been interpreted to mean that federal 13 courts lack jurisdiction over habeas corpus petitions unless the 14 petitioner is ‘under the conviction or sentence under attack at 15 the time his petition is filed.’” 16 978-79 (9th Cir. 2010) (citation omitted); see also Maleng v. 17 Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (interpreting 18 § 2254(a) as “requiring that the habeas petitioner be ‘in 19 custody’ under the conviction or sentence under attack at the 20 time his petition is filed”). 21 jurisdictional, “it is the first question [a court] must 22 consider.” 23 Section 2254(a)’s Bailey v. Hill, 599 F.3d 976, Because the custody requirement is Bailey, 599 F.3d at 978 (citation omitted). In August 2000, Petitioner was apparently sentenced on the 24 discharging-a-firearm conviction to five years probation with one 25 year in county jail. 26 probation, and therefore his custody, see Chaker v. Crogan, 428 27 F.3d 1215, 1219 (9th Cir. 2005), likely terminated five or six 28 years later, in August 2005 or 2006. (Lodged Doc. 1 at 10-11; Pet. at 1-2.) 3 But even if Petitioner His 1 violated his probation shortly before its anticipated completion 2 and was sentenced to the upper term of three years, see Cal. 3 Penal Code §§ 18 & 246.3 (2000), his custody would have ended in 4 August 2008 or 2009. 5 constructive filing date of the Petition, he wouldn’t have been 6 in custody on the conviction he challenges for about a decade or 7 more. 8 sentence under attack at the time his petition [wa]s filed,” this 9 Court lacks subject-matter jurisdiction, and the Petition must be On December 12, 2018, then, the Because he was not “‘in custody’ under the conviction or 10 dismissed with prejudice. 11 Tews, No. CV 15-4279-DMG (KES), 2015 WL 13123193, at *2, *6-7 12 (C.D. Cal. Nov. 2, 2015) (dismissing habeas petition with 13 prejudice for lack of subject-matter jurisdiction because 14 petitioner was no longer in custody on conviction he challenged), 15 accepted by 2017 WL 962754 (C.D. Cal. Mar. 13, 2017).2 16 II. 17 Maleng, 490 U.S. at 490; see Hays v. The Petition Is Untimely Even had Petitioner been in custody when he filed the 18 Petition, it would still have to be dismissed because it is 19 untimely by nearly two decades. 20 21 22 23 24 25 26 27 28 2 To the extent Petitioner challenges his 2013 sentence, thereby collaterally attacking the 2000 conviction, he may not do so. “[O]nce a state conviction is no longer open to direct or collateral attack in its own right” because the petitioner “failed to pursue” relief when it was available or was unsuccessful in doing so, “the conviction may be regarded as conclusively valid” and federal courts are without jurisdiction to review it on habeas. Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 403 (2001). If an expired conviction is “later used to enhance a criminal sentence,” a petitioner “generally may not challenge the enhanced sentence” through a § 2254 petition “on the ground that the prior conviction was unconstitutionally obtained.” Id. at 403-04. 4 1 A. Applicable Law 2 The Antiterrorism and Effective Death Penalty Act sets forth 3 a one-year limitation period for filing a federal habeas petition 4 and specifies that the period runs from the latest of the 5 following dates: 6 (A) 7 conclusion of direct review or the expiration of the time 8 for seeking such review; 9 (B) the date on which the judgment became final by the the date on which the impediment to filing an 10 application created by State action in violation of the 11 Constitution or laws of the United States is removed, if 12 the applicant was prevented from filing by such State 13 action; 14 (C) 15 was initially recognized by the Supreme Court, if the 16 right has been newly recognized by the Supreme Court and 17 made retroactively applicable to cases on collateral 18 review; or 19 (D) the date on which the factual predicate of the claim 20 or claims presented could have been discovered through 21 the exercise of due diligence. the date on which the constitutional right asserted 22 § 2244(d)(1). 23 suspends the limitation period for the time during which a 24 properly filed application for postconviction or other collateral 25 review is pending in state court. 26 Hall, 548 F.3d 729, 734 (9th Cir. 2008). 27 statutory tolling, federal habeas petitions are subject to 28 equitable tolling of the one-year limitation period in AEDPA includes a statutory tolling provision that 5 See § 2244(d)(2); Waldrip v. In addition to 1 appropriate cases. 2 Determining whether equitable tolling is warranted is a fact- 3 specific inquiry. 4 2001) (as amended). 5 pursuing his rights diligently and that some extraordinary 6 circumstance stood in his way and prevented timely filing. 7 Holland, 560 U.S. at 649. 8 9 Holland v. Florida, 560 U.S. 631, 645 (2010). Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. The petitioner must show that he has been As to both statutory and equitable tolling, a petitioner bears the burden of demonstrating that AEDPA’s limitation period 10 was sufficiently tolled. 11 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 12 (9th Cir. 2002) (as amended) (statutory tolling), abrogated on 13 other grounds by Pace, 544 U.S. at 418. Pace v. DiGuglielmo, 544 U.S. 408, 418 14 B. 15 Petitioner apparently pleaded guilty and was convicted on Analysis 16 August 17, 2000. 17 did not file any direct appeal. 18 http://appellatecases.courtinfo.ca.gov/ (search for “Aldrete” 19 with “Raul” in Second App. Dist. yielding no direct appeal in 20 2000) (last visited July 23, 2020); (see also Opp’n at 3). 21 does not contend that he is entitled to a later trigger date 22 under § 2244(d)(1)(B), (C), or (D), and the record discloses no 23 basis for applying any of those provisions.3 (See Pet. at 1-2; see also Opp’n at 2-3.) He See Cal. App. Cts. Case Info., He Because Petitioner 24 25 26 27 28 3 At one point, Petitioner cites People v. Gallardo, 4 Cal. 5th 120 (2017) (Pet. at 3), possibly suggesting that he could not have sought relief until it came out, in December 2017. But § 2244(d)(1)(C) applies to U.S. Supreme Court decisions, not state ones. See Banks v. Sherman, No. CV 18-9468-SP, 2019 WL 4749903, at *3 (C.D. Cal. Sept. 30, 2019) (finding that Gallardo 6 1 did not appeal, his state conviction became final for AEDPA 2 purposes on approximately October 16, 2000, 60 days after 3 judgment. 4 Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (state conviction and 5 sentence become final when availability of direct appeal has been 6 exhausted and time for filing petition for writ of certiorari has 7 elapsed or timely filed petition has been denied).4 8 AEDPA’s one-year statute of limitations began to run on October 9 17, 2000, and ostensibly expired on October 16, 2001. See Cal. R. Ct. 8.308(a) (formerly Rule 30.1(a)); cf. Thus, See 10 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) 11 (holding that AEDPA limitation period begins day after triggering 12 event). 13 until December 12, 2018, more than 17 years late. 14 Petitioner did not constructively file his petition Petitioner does not claim to have filed any state habeas 15 petition while the limitation period was running, nor is there 16 any evidence he did so. 17 to any statutory tolling, he must show equitable tolling 18 sufficient to account for the significant delay in filing the 19 Petition. 20 liberally construed to argue for equitable tolling, he fails to 21 demonstrate that it should apply. Accordingly, because he is not entitled Even if his opposition to the motion to dismiss is 22 23 24 25 26 27 28 didn’t qualify petitioner for later start date under § 2244(d)(1)(C)); see also Dodd v. United States, 545 U.S. 353, 357-58 (2005) (construing identical language in § 2255 as expressing “clear” congressional intent that delayed accrual is inapplicable unless U.S. Supreme Court itself has made new rule retroactive). Thus, Gallardo cannot provide a later trigger date. 4 Petitioner could not have filed a petition for writ of certiorari because he did not appeal to the highest state court. See 28 U.S.C. § 1257; Sup. Ct. R. 13. 7 1 Petitioner alleges that his attorney failed to advise him 2 that his entry of a guilty plea would result in a conviction that 3 might be used to enhance a future sentence. 4 Equitable tolling may be available when misconduct by a 5 petitioner’s attorney was “sufficiently egregious” that it 6 constitutes an “extraordinary circumstance.” 7 620 F.3d 952, 959 (9th Cir. 2010) (as amended); see also Spitsyn 8 v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (as amended) (holding 9 that attorney’s failure to prepare and file habeas petition (See Opp’n at 3-4.) Porter v. Ollison, 10 despite petitioner’s repeatedly contacting him about it amounted 11 to sufficiently egregious misconduct for equitable tolling). 12 Even if Petitioner’s claim were true — and there is no evidence 13 of that other than his own conclusory allegation — any such 14 failing on the part of his attorney could not have caused a 17- 15 year delay. 16 2009) (“The petitioner must additionally show that the 17 ‘extraordinary circumstances were the cause of his 18 untimeliness.’” (citation omitted)). 19 facts explaining the delay, including the five years he waited 20 after his 2013 sentence was enhanced by the 2000 conviction to 21 seek relief. 22 2011) (“[W]e do not doubt that tolling a case for twenty years 23 would be difficult to justify.”). 24 25 See Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. Indeed, he proffers no See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. Accordingly, Petitioner is not entitled to a later trigger date or tolling of any kind, and the Petition is untimely by more 26 27 28 8 1 than 17 years.5 2 3 4 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.6 5 6 DATED: July 23, 2020 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 5 Because the Petition is untimely, the Court need not address Respondent’s exhaustion argument. (See Mot. to Dismiss at 3-5); Seals v. Jaquez, No. C 10-3707-PJH (PR), 2013 WL 4555227, at *3 n.4 (N.D. Cal. Aug. 27, 2013), aff’d, 623 F. App’x 363 (9th Cir. 2015). 23 6 24 25 26 27 28 To the extent Petitioner seeks resentencing on his 2000 or 2013 convictions under new state law (see Opp’n at 3, 6), he must seek such relief in state court. See Jones v. Super. Ct., No. CV 15-752-JFW (PJW), 2016 WL 7638205, at *2 (C.D. Cal. Nov. 17, 2016) (claim for resentencing under Proposition 36 not cognizable in federal court), accepted by 2017 WL 43915 (C.D. Cal. Jan. 4, 2017); Nelson v. Biter, 33 F. Supp. 3d 1173, 1176-78 (C.D. Cal. 2014) (request for resentencing under Cal. Penal Code § 1170.126 not federal constitutional claim). 9
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