Joseph C. Moore v. WM Pollard et al, No. 2:2019cv07771 - Document 58 (C.D. Cal. 2022)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Mark C. Scarsi for NOTICE OF MOTION AND MOTION to to Amend Petition 29 , Report and Recommendation (Issued), 54 It THEREFORE IS ORDERED that Petitioner's motion for leave to amend is denied and that judgment be entered denying the Petition and dismissing this action with prejudice. (es)
Download PDF
<![CDATA[
Joseph C. Moore v. WM Pollard et al Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH C. MOORE, Petitioner, 12 v. 13 14 W.M. POLLARD, Warden, Respondent. 15 ) ) ) ) ) ) ) ) ) ) Case No. CV 19-7771-MCS (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 16 17 The Court has reviewed the Petition, motion for leave to 18 amend, Proposed First Amended Petition, records on file, and 19 Report and Recommendation of U.S. Magistrate Judge, which 20 recommends that Petitioner’s motion for leave to amend be denied 21 and judgment be entered denying the Petition and dismissing this 22 action with prejudice. 23 filed objections to the R. & R. on April 11, 2022; Respondent did 24 not reply. 25 objections, Petitioner twice lodged various state-court records. 26 See 28 U.S.C. § 636(b)(1). Petitioner Between the filing of the R. & R. and of his Most of Petitioner’s objections raise arguments that were 27 convincingly rejected in the R. & R. For example, he continues 28 to maintain that relief is warranted because the search-warrant Dockets.Justia.com 1 return, which he did not even attempt to obtain until over a year 2 after his conviction became final (see R. & R. at 21), proves 3 that the investigating officers violated his Fourth Amendment 4 rights and the prosecutor committed misconduct (see Objs. at 5-6, 5 20). 6 claims are untimely because he did not exercise reasonable 7 diligence in procuring the warrant return. 8 contrary argument. 9 nevertheless cognizable because they challenge the same But as explained in the R. & R. (see R. & R. at 21), those He advances no Although he argues that the claims are 10 conviction and sentence as at issue in his original Petition (see 11 Objs. at 7), he is incorrect. 12 v. Felix, 545 U.S. 644, 662-64 (2005) (explaining that new claim 13 does not “relate back” to filing of exhausted petition simply 14 because it arises from “the same trial, conviction, or 15 sentence”)).) 16 (See R. & R. at 22 (citing Mayle A few of Petitioner’s objections warrant discussion, 17 however. 18 specifically, the transcripts of his pretrial suppression and 19 other motion hearings — that prove he did not have a full and 20 fair opportunity to litigate any Fourth Amendment claims in state 21 court. 22 (1976) (barring consideration of Fourth Amendment claims on 23 habeas review unless petitioner didn’t have “full and fair” 24 opportunity to litigate issue in state court). 25 maintains that the suppression-hearing transcript reveals that 26 the investigating detective misled the judge who issued the 27 search warrant by omitting from the warrant application that 28 officers had arrested him before seeking the warrant. He asserts that he has obtained new evidence — (See Objs. at 3, 17); Stone v. Powell, 428 U.S. 465, 494 2 In particular, he (See, 1 e.g., id. at 3, 20-21.) 2 obtain any of the transcripts until March 2022 despite repeated 3 earlier attempts. 4 Objs. at 2-9.) 5 He further alleges that he was unable to (See id. at 17; Pet’r’s Lodging in Support of These objections are meritless. As an initial matter, the 6 hearing transcripts do not constitute newly discovered evidence. 7 On the contrary, they were necessarily part of the trial record 8 and therefore would have been available to Petitioner long before 9 he claims to have obtained them. See Cal. R. Ct. 8.610(a)(2)(H), 10 (K), (N) (stating that record on appeal “must include a 11 reporter’s transcript containing” “oral proceedings on any motion 12 under Penal Code section 1538.5 denied in whole or in part” as 13 well as other “oral proceedings on motions” and “oral opinion of 14 the court”). 15 recently lodged shows him being handed a copy of the suppression- 16 hearing transcript. 17 Rep.’s Tr. at D-19 to -20.) 18 he lost the transcripts at some point and therefore began 19 requesting new copies of them sometime around November 2020. 20 (See, e.g., Pet’r’s Lodging in Support of Objs. at 4.) 21 doesn’t explain when they went missing or why he evidently took 22 no action to obtain copies during the 17-month period between 23 June 19, 2019 — the day his conviction became final (see R. & R. 24 at 16) — and November 2020.1 Moreover, one of the hearing transcripts Petitioner (See Pet’r’s Lodged Doc. Supporting Claims, To be sure, evidence suggests that But he 25 26 27 28 1 For this reason, any contention that Petitioner is entitled to equitable tolling of the limitation period based on his efforts to obtain the suppression-hearing transcript (see Objs. at 12) is meritless. Compare Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003) (as amended) (holding that equitable tolling may be 3 1 Putting that aside, the facts stemming from the hearings are 2 hardly “new evidence.” Petitioner was necessarily familiar with 3 the testimony and arguments at the hearings because he was not 4 only present but represented himself at them. 5 Lodged Doc. Supporting Claims, Rep.’s Tr. at B-1, C-1, D-1.) 6 indeed, he demonstrated his familiarity with what happened at the 7 suppression hearing by recounting those events in his Proposed 8 First Amended Petition, before he recently got a new copy of the 9 transcript. (See Pet’r’s And (See Proposed First Am. Pet. at 10, 14 (stating that 10 at suppression hearing prosecutor discussed seizure of 11 Petitioner’s cell phone and that it was being “forensically 12 analyzed” when hearing occurred); see also Pet’r’s Lodged Doc. 13 Supporting Claims, Rep.’s Tr. at B-6 (prosecutor stating that she 14 could not make Petitioner’s cell phone available to his 15 investigator because it was being “forensically searched”));2 16 17 18 19 20 21 22 23 24 25 26 27 28 appropriate when attorney ignored petitioner’s requests to return files for more than year and neither filed federal habeas petition nor returned files until after limitation period had run), with Bertran v. U.S. Dist. Ct., No. CV 19-10850-JAK (PD), 2021 WL 1760056, at *8 (C.D. Cal. Mar. 12, 2021) (finding no tolling warranted based on petitioner’s lack of access to preliminaryhearing transcript when petitioner failed to request it for over two years after conviction became final), accepted by 2021 WL 1753626 (C.D. Cal. May 4, 2021); Bautista v. Raymond, No. CV 17-6004-RGK (FFM), 2018 WL 5974491, at *4 (C.D. Cal. May 30, 2018) (rejecting equitable-tolling argument based on counsel’s alleged failure to deliver record when petitioner “provide[d] no documentary evidence suggesting [] that he exercised any sort of diligence in procuring” record during relevant period), accepted by 2018 WL 4961601 (C.D. Cal. Oct. 15, 2018). 2 Without citing any supporting evidence, Petitioner argues that the prosecutor “never gave those numbers and contacts [from the cell phone] over to the defendant.” (Objs. at 3.) But at a later hearing, after Petitioner had agreed to once again be represented by counsel, the prosecutor indicated that she had 4 1 Bertran v. U.S. Dist. Ct., No. CV 19-10850-JAK (PD), 2021 WL 2 1760056, at *8 (C.D. Cal. Mar. 12, 2021) (petitioner’s lack of 3 access to preliminary-hearing transcript did not warrant tolling 4 of limitation period when petitioner was at hearing and 5 demonstrated his memory of testimony adduced during it), accepted 6 by 2021 WL 1753626 (C.D. Cal. May 4, 2021). 7 aware of the facts from the hearings and therefore cannot show 8 that they constitute new evidence. 9 In short, he was Those facts included the testimony at the suppression 10 hearing concerning the sequence of his arrest and the search of 11 his residence. 12 F.3d 891, 899 (9th Cir. 1996) (as amended) (explaining that 13 “[t]he relevant inquiry [for purposes of Stone] is whether 14 petitioner had the opportunity to litigate his claim, not whether 15 he did in fact do so”). 16 hearing to identify the basis for his Fourth Amendment challenge, 17 Petitioner replied, “I’m challenging the fact that there was not 18 a warrant at the time that the police engaged me at my home.” 19 (Pet’r’s Lodged Doc. Supporting Claims, Rep.’s Tr. at C-3.) 20 What’s more, the detective who applied for the search warrant 21 testified without contradiction that Petitioner was arrested 22 before the warrant was issued. (See Objs. at 20-21); Ortiz-Sandoval v. Gomez, 81 Indeed, when asked at the suppression (Id. at C-30; see also id. at C- 23 24 25 26 27 28 received the evidence from the “forensic search of the defendant’s phone” and would be turning it over to counsel. (See Pet’r’s Lodged Doc. Supporting Claims, Rep.’s Tr. at E-2 to -3 (prosecutor discussing phone evidence) & E-5 (Petitioner asking to have standby counsel take over and court granting request).) Thus, that Petitioner himself didn’t receive the cell-phone evidence doesn’t mean it wasn’t produced to the defense. 5 1 32, C-38 to -40, C-72, D-3.)3 2 detective committed “perjury” by testifying that “officers on 3 scene never entered the Petitioner’s home” before the warrant was 4 issued is meritless. 5 hearing — not even Petitioner’s (see Pet’r’s Lodged Doc. 6 Supporting Claims, Rep.’s Tr. at C-74 to -86) — supports his 7 contention. 8 taken of the residence in its state as we found it prior to the 9 search warrant being served” in context clearly meant simply that Petitioner’s contention that that (Objs. at 4.) No testimony adduced at the The detective’s testimony that “photographs were 10 the officers took photos of the scene immediately before and 11 after conducting the search, as they always did (see id. at C-42 12 to -43), not that she entered the home before the warrant 13 arrived. 14 But putting all that aside, the only evidence Petitioner 15 cites to show that the detective perjured herself — namely, an 16 exhibit that he introduced and testimony elicited in response to 17 his own questioning — is evidence from the hearing itself. 18 Objs. at 4.) 19 under Stone to litigate that issue. 20 (See Thus, he clearly had a full and fair opportunity Petitioner reiterates his arguments that his alleged lack of 21 access to the warrant return somehow hindered his ability to 22 prosecute his suppression motion. 23 never explains how. (See Objs. at 15-16.) But he Even if the warrant return listed his seized 24 3 25 26 27 28 Of course, the question of whether there was probable cause for Petitioner’s arrest – which the court of appeal noted he did not raise (see Resp’t’s Lodged Doc. 2 at 12) — is distinct from whether the warrant authorizing the police to search his home was valid. Petitioner provides no credible reason to conclude that the timing or circumstances of his arrest invalidates the warrant, and none is apparent to the Court. 6 1 cell phone and it wasn’t specifically mentioned in the warrant 2 itself, he clearly knew the phone had been seized because he 3 repeatedly referenced that fact during the pretrial hearings. 4 And the detective’s apparent misstatement about which judge 5 signed the warrant return wasn’t “perjury” (Objs. at 5-6, 20) 6 because that fact was immaterial. 7 Petitioner recently lodged show that before trial he had a list 8 of “all the items that was [sic] seized from [his] residence” 9 (Pet’r’s Lodged Doc. Supporting Claims, Rep.’s Tr. at C-82) — if Finally, the transcripts 10 not the warrant return itself, a document serving the same 11 purpose. 12 materially different from the return. 13 full and fair opportunity at the suppression hearing to challenge 14 the search despite allegedly not yet having seen the warrant 15 return, and that claim is barred by Stone. 16 He has never claimed that that document was somehow Thus, Petitioner had a Next, Petitioner suggests that he is entitled to equitable 17 tolling of the limitation period. 18 only claim he identifies in this portion of the objections is his 19 ineffective-assistance claim concerning appellate counsel’s 20 performance. 21 appellate counsel “discovered discrepancies with [Petitioner’s 22 trial counsel] in regards to the suppression issue and presented 23 on appeal[,] it would have been discovered by her and exhausted 24 to be presented on § 2254 fedreal [sic] habeas corpus.” 25 To the extent Petitioner believes this allegation entitles him to 26 equitable tolling, it is unclear why. 27 aware that his appellate counsel didn’t challenge trial counsel’s 28 failure to renew the suppression motion — indeed, he raised that (See id.) (See Objs. at 12.) But the Specifically, he asserts that had 7 (Id.) He was undoubtedly already 1 challenge himself in a habeas petition he filed in conjunction 2 with his direct appeal. 3 In any event, the underlying claim — that appellate counsel erred 4 in neglecting to assert an ineffective-assistance claim based on 5 trial counsel’s failure to renew the suppression motion (see 6 Objs. at 13, 14) — is meritless because, as related in the R. & 7 R., there was no basis to renew the motion (see R. & R. at 51). 8 Finally, Petitioner claims for the first time that his 9 conviction violates the Eighth Amendment because it was obtained (See Resp’t’s Lodged Doc. 2 at 19-20.) 10 “as a result of all of the illegal acts of the police and 11 prosecuting office and the erroneous unreasonable applications 12 applied in this case contrary to federal law.” 13 Petitioner may not assert a new claim for the first time in his 14 objections. 15 (9th Cir. 2008) (holding that reply to answer was not proper 16 pleading to raise additional grounds for relief or arguments). 17 Although the Court has discretion to consider the claim, see id.; 18 Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002), it declines to 19 because the claim is unexhausted and at bottom is a disguised 20 Fourth Amendment challenge barred by Stone. 21 “illegal acts of the police and prosecuting office” to which he 22 refers are those concerning the search of his home and seizure of 23 his property. (See Objs. at 3-6; see also Proposed First Am. 24 Pet. at 7-9.) And to the extent his Eighth Amendment claim is 25 premised on the warrant return — as are most of the claims in the 26 Proposed First Amended Petition (see R. & R. at 23; Suppl. Reply 27 at 7) — it is time barred (see R. & R. at 16-27). 28 there is no reason to allow him to assert a new Eighth Amendment (Objs. at 22.) See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 8 Indeed, the only Accordingly, 1 claim at this late stage. 2 Having reviewed de novo those portions of the R. & R. to 3 which Petitioner objects, see 28 U.S.C. § 636(b)(1)(C), the Court 4 accepts the findings and recommendations of the Magistrate Judge. 5 It THEREFORE IS ORDERED that Petitioner’s motion for leave to 6 amend is denied and that judgment be entered denying the Petition 7 and dismissing this action with prejudice. 8 9 10 DATED: May 19, 2022 MARK C. SCARSI U.S. DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
