Rayford Tyler, Jr. v. Josie Gastelo, No. 2:2020cv00679 - Document 20 (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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Rayford Tyler, Jr. v. Josie Gastelo Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAYFORD TYLER, JR., Petitioner, 12 v. 13 14 JOSIE GASTELO, Warden, Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) Case No. CV 20-0679-JPR MEMORANDUM DECISION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE PROCEEDINGS 17 18 On January 16, 2020, Petitioner, proceeding pro se, 19 constructively filed a Petition for Writ of Habeas Corpus by a 20 Person in State Custody, raising two claims: he is entitled to 21 resentencing under a change in state law, and California’s 22 robbery statutes under which he was convicted are void for 23 vagueness.1 (Pet. at 5, 25-35.) Respondent moved to dismiss the 24 1 25 26 27 28 Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner constructively files something on the day he gives it to prison authorities for forwarding to the relevant court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). The Court presumes that is the day he signed the document unless there is evidence to the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per 1 Dockets.Justia.com 1 Petition on April 14, 2020, arguing in part that Petitioner’s 2 void-for-vagueness claim was untimely, and Petitioner opposed on 3 June 15. 4 first time that the resentencing claim was untimely as well. 5 Court allowed supplemental briefing, and Petitioner filed 6 supplemental opposition on July 13, 2020. 7 file a supplemental reply. 8 jurisdiction of the undersigned under 28 U.S.C. § 636(c)(1). 9 the reasons discussed below, the Petition is untimely and this 10 Respondent replied on June 23, 2020, asserting for the Respondent did not The parties consented to the For action is dismissed with prejudice. BACKGROUND 11 12 The On May 10, 2017, Petitioner pleaded no contest in Los 13 Angeles County Superior Court to three counts of second-degree 14 robbery, admitted a prior serious-felony conviction under 15 California’s Three Strikes Law, and received a negotiated 16 sentence of 13 years in state prison. 17 He did not appeal. 18 appellatecases.courtinfo.ca.gov/ (search for “Tyler” with 19 “Rayford” in Second App. Dist. revealing no appeal filed) (last (Lodged Doc. 1 at 11-14.) See Cal. App. Cts. Case Info., http:// 20 21 22 23 24 25 26 27 28 curiam) (as amended). Here, although Petitioner signed his Petition on January 14, 2020, it appears he gave it to prison authorities on January 16 because that is when he signed and initialed the back of the envelope in which it was mailed. (See Pet. at 7, 40 (for nonconsecutively paginated documents, the Court uses the pagination provided by its Case Management/ Electronic Case Filing system).) The Court therefore deems that to be its constructive filing date. See Kane v. Foulk, No. CV 13-3521-JVS (DTB)., 2014 WL 1370368, at *3 (C.D. Cal. Apr. 4, 2014) (noting that handwritten date next to signature on envelope containing petition was “likely the date that the [p]etition was turned over to prison authorities”). The mailbox rule applies to state habeas petitions as well. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). 2 1 visited Oct. 7, 2020). 2 On May 19, 2019, Petitioner constructively filed a habeas 3 petition in the superior court (Lodged Doc. 2 at 1, 18), which it 4 denied in a reasoned order on July 10 (Lodged Doc. 3). 5 Petitioner filed a signed but undated petition in the court of 6 appeal (Lodged Doc. 4 at 1, 6, 18), which filed it on July 29, 7 2019, and summarily denied it on August 6 (Lodged Doc. 5). 8 filed the May 19, 2019 petition a second time in the superior 9 court on August 15 (Lodged Doc. 6 at 6, 18); it denied the He 10 petition as successive on August 20 (Lodged Doc. 7). On 11 September 26, 2019, the California Supreme Court filed 12 Petitioner’s signed but undated petition (Lodged Doc. 8 at 1, 6, 13 12, 18), and it summarily denied it on December 11 (Lodged Doc. 14 9). PETITIONER’S CLAIMS 15 1. 16 He should be resentenced under California Senate Bill 17 1393, which in 2019 gave judges discretion to strike or dismiss 18 prior-serious-felony enhancements. 2. 19 20 23 California’s robbery statutes are void for vagueness. (Id. at 5, 31-40.) DISCUSSION 21 22 (Pet. at 5, 25-30.) I. The Statute-of-Limitation Defense Was Not Forfeited Despite asserting in her motion to dismiss that Petitioner’s 24 second claim was untimely, Respondent argued for the first time 25 in her reply that his first claim was also time barred. 26 (See Mot. to Dismiss at 2-3; Reply at 3-4.) 27 that by not contesting the first claim’s timeliness until her 28 3 Petitioner contends 1 2 reply, she “waived” the defense.2 (Suppl. Opp’n at 2.) “Ordinarily in civil litigation, a statutory time limitation 3 is forfeited if not raised in a defendant’s answer or in an 4 amendment thereto.” 5 (citing Fed. Rs. Civ. P. 8(c), 12(b), & 15(a)); see also R. 5(b), 6 Rules Governing § 2254 Cases in U.S. Dist. Cts. (requiring 7 respondent to plead statute-of-limitation defense in answer). 8 But bars to considering habeas corpus defenses aren’t absolute, 9 and exceptions based on important interests such as exhaustion Day v. McDonough, 547 U.S. 198, 202 (2006) Cf. Wood v. Milyard, 566 10 and timeliness have been recognized. 11 U.S. 463, 470-73 (2012) (acknowledging exceptions to general rule 12 on forfeiture of affirmative defenses and declining to adopt 13 absolute rule barring court of appeal from sua sponte raising 14 forfeited timeliness defense). 15 prohibited from relying on a statute-of-limitation defense only 16 if it intentionally waives it. 17 that when respondent made “no intelligent waiver” of limitation 18 defense, federal court had discretion to “dismiss the petition as 19 untimely under AEDPA’s one-year limitation”). Accordingly, a party is Day, 547 U.S. at 202 (holding 20 When, as here, a respondent’s failure to raise timeliness in 21 a motion to dismiss was apparently inadvertent, she is not barred 22 from asserting it in her reply. 23 No. 2:08-1218-GEB-KJN-P., 2013 WL 5954896, at *11 (E.D. Cal. Nov. 24 7, 2013) (holding that respondent didn’t forfeit statute-of- Id.; see also Harmon v. Adams, 25 26 27 28 2 “A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.” Wood v. Milyard, 566 U.S. 463, 470 n.4 (2012). Thus, the issue here is whether Respondent has forfeited her timeliness argument. 4 1 limitation defense by omitting it from answer because it didn’t 2 expressly waive it and asserted it in response to further- 3 briefing order), accepted by 2014 WL 127962 (E.D. Cal. Jan. 14, 4 2014); Whitehead v. Hedgpeth, No. C-12-3487 EMC, 2013 WL 3967341, 5 at *7 (N.D. Cal. July 31, 2013) (holding that respondent wasn’t 6 barred from asserting timeliness defense by not moving to dismiss 7 on that ground and instead raising it in opposition to motion for 8 stay and abeyance). 9 opportunity to challenge the newly raised argument, as the Court And Petitioner was not deprived of an 10 allowed supplemental briefing. 11 Moreover, strong interests are served by applying AEDPA’s one- 12 year limitation period. 13 Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000) (“The AEDPA 14 statute of limitation promotes judicial efficiency and 15 conservation of judicial resources, safeguards the accuracy of 16 state court judgments by requiring resolution of constitutional 17 questions while the record is fresh, and lends finality to state 18 court judgments within a reasonable time.”)). 19 of-limitation defense was not forfeited. 20 II. 21 See Day, 547 U.S. at 210. See id. at 205-06 (citing with approval Thus, the statute- The Petition Is Untimely Petitioner filed the Petition a year and a half after the 22 limitation period had expired, and he is not entitled to a later 23 trigger date or tolling of any kind. Thus, he is too late. 24 A. Applicable Law 25 The Antiterrorism and Effective Death Penalty Act sets forth 26 a one-year limitation period for filing a federal habeas petition 27 and specifies that the period runs from the latest of the 28 following dates: 5 1 (A) the date on which the judgment became final by the 2 conclusion of direct review or the expiration of the time 3 for seeking such review; 4 (B) 5 application created by State action in violation of the 6 Constitution or laws of the United States is removed, if 7 the applicant was prevented from filing by such State 8 action; 9 (C) the date on which the impediment to filing an the date on which the constitutional right asserted 10 was initially recognized by the Supreme Court, if the 11 right has been newly recognized by the Supreme Court and 12 made retroactively applicable to cases on collateral 13 review; or 14 (D) the date on which the factual predicate of the claim 15 or claims presented could have been discovered through 16 the exercise of due diligence. 17 § 2244(d)(1). 18 must be assessed “on an individual basis.” 19 668 F.3d 1164, 1171 (9th Cir. 2012). 20 The timeliness of each claim in a habeas petition Mardesich v. Cate, AEDPA includes a statutory tolling provision that suspends 21 the limitation period for the time during which a properly filed 22 application for postconviction or other collateral review is 23 pending in state court. 24 F.3d 729, 734 (9th Cir. 2008). 25 federal habeas petitions are subject to equitable tolling of the 26 one-year limitation period in appropriate cases. 27 Florida, 560 U.S. 631, 645 (2010). 28 tolling is warranted is a fact-specific inquiry. See § 2244(d)(2); Waldrip v. Hall, 548 In addition to statutory tolling, 6 Holland v. Determining whether equitable Frye v. 1 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (as amended). The 2 petitioner must show that he has been pursuing his rights 3 diligently and that some extraordinary circumstance stood in his 4 way and prevented timely filing. Holland, 560 U.S. at 649. As to both statutory and equitable tolling, a petitioner 5 6 bears the burden of demonstrating that AEDPA’s limitation period 7 was sufficiently tolled. 8 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 9 (9th Cir. 2002) (as amended) (statutory tolling), abrogation on Pace v. DiGuglielmo, 544 U.S. 408, 418 10 other grounds recognized by United States v. Davis, 508 F. App’x 11 606, 609 (9th Cir. 2013). 12 B. Analysis 13 Petitioner pleaded no contest and was convicted on May 10, 14 2017. (Lodged Doc. 1 at 11-14.) He did not appeal. See Cal. 15 App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ 16 (search for “Tyler” with “Rayford” in Second App. Dist. revealing 17 no appeal filed) (last visited Oct. 7, 2020). 18 convictions became final on July 9, 2017, 60 days later. 19 Cal. R. Ct. 8.308(a); cf. Caspari v. Bohlen, 510 U.S. 383, 390 20 (1994) (state conviction and sentence become final when 21 availability of direct appeal has been exhausted and time for 22 filing petition for writ of certiorari has elapsed or timely 23 filed petition has been denied).3 24 year statute of limitation began to run on July 10, 2017, and Thus, his See Ostensibly, then, AEDPA’s one- 25 26 27 28 3 Petitioner could not have filed a petition for writ of certiorari in the U.S. Supreme Court because he did not appeal to the highest state court. See 28 U.S.C. § 1257(a); Sup. Ct. R. 13(1). 7 1 expired on July 9, 2018. 2 1243, 1246 (9th Cir. 2001) (holding that AEDPA limitation period 3 begins running day after triggering event). 4 constructively file his Petition until January 16, 2020, more 5 than a year and a half late. 6 See Patterson v. Stewart, 251 F.3d Petitioner did not To the extent Petitioner contends he is entitled to a later 7 trigger date under § 2244(d)(1)(C) (see Pet. at 25-35; Opp’n at 8 2), his contention is unfounded.4 9 argues that the Supreme Court’s ruling in Sessions v. Dimaya, 138 10 S. Ct. 1204 (2018), created “an issue surrounding the ‘nature’ of 11 the California robbery being ‘[s]erious’ as opposed to 12 ‘[v]iolent.’” 13 (holding that 18 U.S.C. § 16(b) was vague in violation of due 14 process). 15 2015), and United States v. Garcia-Lopez, 903 F.3d 887 (9th Cir. 16 2018), also cited by Petitioner (see Pet. at 32), the Ninth 17 Circuit held that the defendants’ California robbery convictions 18 did not qualify as violent felonies under the Armed Career 19 Criminal Act, Dixon, 805 F.3d at 1198-99, or crimes of violence 20 under § 16(a), Garcia-Lopez, 903 F.3d at 893. 21 Lopez are not U.S. Supreme Court cases and are in any event, like 22 Dimaya, not relevant clearly established federal law here because 23 Petitioner’s sentence was enhanced under state statutes. As to his second claim, he (Pet. at 31-32); see Dimaya, 138 S. Ct. at 1216 In United States v. Dixon, 805 F.3d 1193 (9th Cir. Dixon and Garcia- 24 25 26 27 28 4 Petitioner does not argue that he’s entitled to a later trigger date under § 2244(d)(1)(B) or (D). Any such claim would fail. See Shannon v. Newland, 410 F.3d 1083, 1087-89 (9th Cir. 2005) (holding that change in state law does not qualify as removal of “impediment” under subsection (B) or “factual predicate” under subsection (D)). 8 1 Therefore, he is not entitled to a later start of the statute of 2 limitation under § 2244(d)(1)(C). 3 18-07721-JVS (AS), 2019 WL 469137, at *4 (C.D. Cal. Jan. 9, 2019) 4 (rejecting claim identical to that raised here), accepted by 2019 5 WL 468802 (C.D. Cal. Feb. 5, 2019), certificate of appealability 6 denied, No. 19-55214, 2019 WL 8059542 (9th Cir. Nov. 8, 2019). 7 And Petitioner does not identify any new U.S. Supreme Court 8 authority giving rise to his first claim. 9 new state law. 10 See Gray v. Sherman, No. CV It rests entirely on Thus, no later trigger date applies for it either. 11 Petitioner is not entitled to statutory tolling because he 12 constructively filed his first state habeas petition on May 19, 13 2019, well after the AEDPA limitation period ended, on July 9, 14 2018. 15 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit 16 the reinitiation of the limitations period that has ended before 17 the state petition was filed.”); Green v. White, 223 F.3d 1001, 18 1003 (9th Cir. 2000) (holding that habeas petition filed after 19 limitation period had already run resulted in no tolling). 20 Because he is not entitled to any statutory tolling, he must show 21 equitable tolling sufficient to account for the delay in filing 22 the Petition. 23 opposition does he argue for equitable tolling, and no basis for 24 it is apparent to the Court. 25 1030, 1034 (9th Cir. 2005) (noting that “equitable tolling will 26 not be available in most cases,” and petitioner has burden of 27 showing that extraordinary circumstances justify tolling). 28 (See Lodged Doc. 1 at 16-18); Ferguson v. Palmateer, 321 In neither his opposition nor his supplemental See Gaston v. Palmer, 417 F.3d Accordingly, Petitioner is not entitled to a later trigger 9 1 date or tolling of any kind for either of his claims, and the 2 Petition is untimely by more than a year and a half.5 ORDER 3 4 5 IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice. 6 7 DATED: 10/8/2020 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Because the Petition is clearly untimely, the Court does not reach the issue of the cognizability of Petitioner’s first claim. (See Mot. to Dismiss at 2-3.) 10
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