Luis A. Arroyo v. George Jaime, No. 2:2020cv06135 - Document 19 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION and Order Denying Petition for Writ of Habeas Corpus by Magistrate Judge Charles F. Eick. The Petition is denied and dismissed with prejudice. (sp)
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Luis A. Arroyo v. George Jaime Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 LUIS A. ARROYO, ) ) Petitioner, ) ) v. ) ) WARDEN GEORGE JAIME, ) ) Respondent. ) ______________________________) NO. CV 20-6135-E MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 16 17 18 PROCEEDINGS 19 20 Petitioner filed a “Petition for Writ of Habeas Corpus By a 21 Person in State Custody” on July 9, 2020. Respondent filed a “Motion 22 to Dismiss etc.” on October 30, 2020. 23 Traverse on November 18, 2020. 24 consented to proceed before a United States Magistrate Judge. 25 /// 26 /// 27 /// 28 /// Petitioner filed a Reply and a Petitioner and Respondent have Dockets.Justia.com 1 BACKGROUND 2 3 Pursuant to a guilty plea in Ventura County Superior Court, 4 Petitioner received a twelve year prison sentence on June 15, 2017 5 (Petition at 2). 6 on direct appeal (id.; Lodged Document 1). 7 Appeal dismissed Petitioner’s direct appeal on March 26, 2018 8 (Petition at 3; Lodged Document 1). 9 not receive notice of this dismissal until May 22, 2018 (“Declaration 10 Petitioner’s appellate counsel filed a “Wende brief” The California Court of Petitioner asserts that he did of Luis Avila Arroyo,” dated December 3, 2019 (attached to Petition)). 11 12 Petitioner did not file a petition for review (see Lodged 13 Document 1).1 14 collateral review until December 9, 2019, when he reportedly filed a 15 habeas corpus petition in the Court of Appeal (Petition at 3-4). 16 Subsequently, Petitioner also filed a habeas corpus petition in the 17 California Supreme Court (Petition at 4; Lodged Document 2). Petitioner did not file any application for state 18 19 In the present federal Petition, Petitioner alleges three claims: 20 (1) the Court of Appeal should have remanded the matter under newly 21 enacted Senate Bill 620 to allow the sentencing court to exercise its 22 discretion to strike Petitioner’s ten year sentence enhancement; 23 (2) appellate counsel was ineffective for failing to request such a 24 25 26 27 28 1 The Court takes judicial notice of the docket of the California Supreme Court, available at www.courts.ca.gov. See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2001). The docket reflects that Petitioner never filed a petition for review in that Court. 2 1 remand;2 and (3) appellate counsel’s representation of Petitioner was 2 so deficient as to violate Petitioner’s due process rights. 3 4 DISCUSSION 5 6 7 As discussed below, the applicable statute of limitations bars the present Petition. 8 9 I. The Statute 10 11 The “Antiterrorism and Effective Death Penalty Act of 1996” 12 (“AEDPA”), signed into law April 24, 1996, amended 28 U.S.C. section 13 2244 to provide a one-year statute of limitations governing habeas 14 petitions filed by state prisoners: 15 16 (d)(1) A 1-year period of limitation shall apply to an 17 application for a writ of habeas corpus by a person in 18 custody pursuant to the judgment of a State court. 19 limitation period shall run from the latest of – The 20 21 (A) the date on which the judgment became final by the 22 conclusion of direct review or the expiration of the time 23 for seeking such review; 24 /// 25 26 27 28 2 During the direct appeal, Petitioner evidently had urged his appellate counsel to raise the Senate Bill 620 issue with the Court of Appeal. See May 22, 2018 letter attached to Petition. 3 1 (B) the date on which the impediment to filing an 2 application created by State action in violation of the 3 Constitution or laws of the United States is removed, if the 4 applicant was prevented from filing by such State action; 5 6 (C) the date on which the constitutional right asserted was 7 initially recognized by the Supreme Court, if the right has 8 been newly recognized by the Supreme Court and made 9 retroactively applicable to cases on collateral review; or 10 11 (D) the date on which the factual predicate of the claim or 12 claims presented could have been discovered through the 13 exercise of due diligence. 14 15 (2) The time during which a properly filed application for 16 State post-conviction or other collateral review with 17 respect to the pertinent judgment or claim is pending shall 18 not be counted toward any period of limitation under this 19 subsection. 20 21 “AEDPA’s one-year statute of limitations in § 2244(d)(1) applies to 22 each claim in a habeas application on an individual basis.” 23 v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Mardesich 24 25 II. Accrual 26 27 28 The California Court of Appeal’s March 26, 2018 dismissal of Petitioner’s direct appeal became “final in that court” on April 25, 4 1 2018. See Cal. Ct. R. 8.366(b)(1)(Court of Appeal decision in 2 criminal case is “final in that court 30 days after filing”). However, 3 Petitioner’s conviction did not become “final” for purposes of the 4 federal statute of limitations until May 5, 2020. 5 Thaler, 565 U.S. 134, 150 (2012) (if the petitioner did not pursue 6 discretionary review in the state’s highest court on direct appeal, 7 the conviction becomes “final” for statute of limitations purposes 8 when the time for seeking such review expired); Smith v. Duncan, 297 9 F.3d 809, 813 (9th Cir. 2002), abrogation on other grounds recognized See Gonzalez v. 10 in Moreno v. Harrison, 245 Fed. App’x 606 (9th Cir 2007), cert. 11 denied, 552 U.S. 1121 (2008) (if a California petitioner does not file 12 a petition for review on direct appeal, the conviction becomes “final” 13 for purposes of the statute of limitations when the time for filing a 14 petition for review expired); Cal. Ct. R. 8.500(e)(1) (“A petition for 15 review must be served and filed within 10 days after the Court of 16 Appeal decision is final in that court”). 17 limitations commenced running from May 5, 2018, unless subsections B, 18 C or D of section 2244(d)(1) provide a later accrual date. Therefore, the statute of 19 20 Subsection B does not provide a later accrual date. To warrant 21 delayed accrual under subsection B, Petitioner must show that illegal 22 conduct by the state or those acting for the state “made it impossible 23 for him to file a timely § 2254 petition in federal court.” 24 Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009). 25 must show a causal connection between the impediment and his failure 26 to file a timely federal petition. 27 General, 499 F.3d 1056, 1059-60 (9th Cir. 2007) (citations omitted). 28 Petitioner “must satisfy a far higher bar than that for equitable See Petitioner See Bryant v. Arizona Atty. 5 1 tolling.” Ramirez v. Yates, 571 F.3d at 1000. Petitioner is entitled 2 to delayed accrual under subsection B only if the alleged impediment 3 “altogether prevented him from presenting his claims in any form, to 4 any court.” 5 the present case, no illegal state action prevented Petitioner from 6 filing the present Petition sooner. Id. at 1001 (emphasis original; citation omitted). In 7 8 Contrary to Petitioner’s apparent argument, the purported actions 9 or omissions of Petitioner’s appellate counsel are not attributable to 10 the state under subsection B. See Lawrence v. Florida, 421 F.3d 1221, 11 1226 (11th Cir. 2005), aff’d on other grounds, 549 U.S. 327 (2007) 12 (rejecting argument that the state created an impediment by providing 13 incompetent counsel; “[t]his is not the type of State impediment 14 envisioned in § 2244(d)(1)(B)”); Ibarra v. Ground, 2012 WL 3259898, at 15 *3 (C.D. Cal. July 9, 2012), adopted, 2012 WL 3257883 (C.D. Cal. 16 Aug. 8, 2012) (“the actions of petitioner’s appellate counsel cannot 17 be imputed to the state for purposes of extending the limitations 18 period under § 2244(d)(1)(B)”) (citations omitted); Lopez v. On Habeas 19 Corpus, 2010 WL 2991689, at *4 (E.D. Cal. July 29, 2010) (even a 20 state-appointed attorney cannot create an “impediment” “by State 21 action” within the meaning of section 2244(d)(1)(B)). 22 Petitioner has not shown that his counsel’s alleged failures prevented 23 Petitioner from filing a federal habeas petition. 24 Crawford, 604 F.3d 1047, 1058 (9th Cir.), cert. denied, 562 U.S. 969 25 (2010) (state-appointed counsel’s alleged failure to perfect state 26 court appeal did not merit delayed accrual under section 27 2244(d)(1)(B), where nothing prevented the petitioner from filing a 28 federal habeas petition); Bryant v. Arizona Att’y General, 499 F.3d at 6 In any event, See Randle v. 1 1060 (petitioner must show causal connection between alleged 2 impediment and failure to file timely federal petition). 3 4 Subsection C also fails to provide a later accrual date. The 5 Petition does not assert any “constitutional right” “newly recognized 6 by the Supreme Court and made retroactively applicable to cases on 7 collateral review.” 8 (2005) (construing identical language in section 2255 as expressing 9 “clear” congressional intent that delayed accrual inapplicable unless See Dodd v. United States, 545 U.S. 353, 360 10 the United States Supreme Court itself has made the new rule 11 retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes 12 of second or successive motions under 28 U.S.C. section 2255, a new 13 rule is made retroactive to cases on collateral review only if the 14 Supreme Court itself holds the new rule to be retroactive); Peterson 15 v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 16 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 17 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 18 28 U.S.C. section 2244(d)(1)(C)). 19 20 Subsection D arguably does provide an accrual date slightly later 21 than May 5, 2018, because Petitioner asserts he was unaware of the 22 Court of Appeal’s adverse decision on direct appeal until May 22, 23 2018. 24 (statute began to run after the petitioner discovered prejudice from 25 counsel’s allegedly ineffective performance). 26 lack of diligence on the part of Petitioner in failing to discover the 27 factual predicates for his claims sooner, the statute began to run on 28 /// See Hasan v. Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) 7 Assuming, arguendo, no 1 all of Petitioner’s claims from May 22, 2018.3 2 3 The Motion to Dismiss mentions People v. Stamps, 9 Cal.5th 685, 4 263 Cal. Rptr. 3d 144, 464 P.3d 611 (2020), a recent California 5 Supreme Court decision arguably helpful to Petitioner’s legal claims. 6 As the Motion to Dismiss correctly explains, however, the recency of 7 this decision does not affect the limitations analysis. Under 8 subsection D, the “‘due diligence’ clock starts ticking when a person 9 knows or through diligence could discover the vital facts, regardless 10 of when their legal significance is actually discovered.” Ford v. 11 Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 568 U.S. 1053 12 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). 13 Thus, the running of the statute of limitations does not await the 14 issuance of judicial decisions that help would-be petitioners 15 recognize the legal significance of particular predicate facts. 16 Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005), cert. denied, 17 546 U.S. 1171 (2006) (intervening state court decision establishing 18 abstract proposition of law arguably helpful to petitioner does not 19 constitute a “factual predicate” under section 2244(d)(1)(D)); Soja v. 20 Hornbeck, 2010 WL 3118716, at *2 (N.D. Cal. Aug. 2, 2010) (“a 21 favorable legal decision cannot function as a factual predicate” under 22 section 2244(d)(1)(D)); Singer v. Dir. of Corrections, 2010 WL 23 24 25 26 27 28 3 The Court uses the date of May 22, 2018 based on Petitioner’s December 3, 2019 declaration. The Court observes, however, that a letter from Petitioner’s appellate counsel to Petitioner also bears the date of May 22, 2018. Even if this letter constituted Petitioner’s first notice of the dismissal of his direct appeal, and even if Petitioner did not receive the letter until a few days (or weeks) after its date, the result herein would be the same. 8 See 1 1444479, at *3 (C.D. Cal. March 4, 2010), adopted, 2010 WL 1444475 2 (C.D. Cal. April 2, 2010) (same); Sledge v. Dexter, 2009 WL 838235, at 3 *3 (C.D. Cal. March 26, 2009) (same). 4 5 Accordingly, the statute of limitations began to run from May 22, 6 2018. Absent tolling, the statute expired on May 22, 2019, long 7 before the filing of the present Petition. 8 251 F.3d 1243 (9th Cir. 2001) (AEDPA statute of limitations expires on 9 the anniversary date of the date the statute begins to run). See Patterson v. Stewart, As 10 discussed below, no theory of tolling can rescue the present Petition 11 from the bar of limitations. 12 13 III. Statutory Tolling 14 15 Section 2244(d)(2) tolls the statute of limitations during the 16 pendency of “a properly filed application for State post-conviction or 17 other collateral review.” 18 between the conviction’s finality and the filing of Petitioner’s first 19 state court habeas petition. 20 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 21 U.S. 1104 (2000). The statute of limitations is not tolled See Porter v. Ollison, 620 F.3d at 958; 22 23 Petitioner did not file his first state court habeas petition 24 until December 9, 2019, many months after the statute of limitations 25 expired. 26 revive or otherwise toll the statute. 27 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) (“section 28 2244(d) does not permit the reinitiation of the limitations period Petitioner’s belatedly filed state court petitions cannot 9 See Ferguson v. Palmateer, 321 1 that has ended before the state petition was filed”); Jiminez v. Rice, 2 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) 3 (filing of state habeas petition “well after the AEDPA statute of 4 limitations ended” does not affect the limitations bar); Webster v. 5 Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 6 (2000) (“[a] state-court petition . . . that is filed following the 7 expiration of the limitations period cannot toll that period because 8 there is no period remaining to be tolled”). 9 not entitled to statutory tolling. Therefore, Petitioner is 10 11 IV. Equitable Tolling 12 13 The federal statute of limitations is subject to equitable 14 tolling “in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 15 (2010) (citations omitted). 16 ‘equitable tolling’ only if he shows ‘(1) that he has been pursuing 17 his claims diligently, and (2) that some extraordinary circumstance 18 stood in his way’ and prevented timely filing.” 19 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); accord Menominee Indian 20 Tribe of Wisconsin v. United States, 136 S. Ct. 750, 755-56 (2016); 21 see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). 22 prong of this test “is met only where the circumstances that caused a 23 litigant’s delay are both extraordinary and beyond [his] control.” 24 Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. at 25 756 (footnote omitted) (applying Holland v. Florida). “[A] ‘petitioner’ is entitled to Id. at 649 (quoting The second 26 27 28 The threshold necessary to trigger equitable tolling “is very high, lest the exceptions swallow the rule.” 10 Waldron-Ramsey v. 1 Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 2 (2009) (citations and internal quotations omitted). 3 the burden to prove equitable tolling. 4 1013, 1019 (9th Cir. 2009). 5 “extraordinary circumstances” were the “cause of his untimeliness.” 6 Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 7 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 8 F.3d 796, 799 (9th Cir. 2003)). Petitioner bears See Zepeda v. Walker, 581 F.3d Petitioner must show that the alleged 9 10 No basis for the equitable tolling of any time period subsequent 11 to May 22, 2018 appears on the present record. To the extent 12 Petitioner contends that he was ignorant of the law, without access to 13 legal assistance and/or without resources, such allegations are 14 insufficient to justify equitable tolling. 15 592 F.3d 1046 (9th Cir. 2010) (pro se status and lack of access to 16 jailhouse assistants are insufficient to warrant equitable tolling); 17 Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 (“we have held that a 18 pro se petitioner’s confusion or ignorance of the law is not, itself, 19 a circumstance warranting equitable tolling”) (citation omitted); 20 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se 21 petitioner’s lack of legal sophistication is not, by itself, an 22 extraordinary circumstance warranting equitable tolling”); Turner v. 23 Johnson, 177 F.3d 390, 392 (5th Cir.), cert. denied, 528 U.S. 1007 24 (1999) (“[N]either a plaintiff’s unfamiliarity with the legal process 25 nor his lack of representation during the applicable filing period 26 merits equitable tolling. . . . 27 unfamiliarity is due to illiteracy or any other reason”); Loza v. 28 Soto, 2014 WL 1271204, at *6 (C.D. Cal. Mar. 26, 2014) (“To allow See Chaffer v. Prosper, It is irrelevant whether the 11 1 equitable tolling based on the fact that most prisoners do not have 2 legal knowledge or training would create a loophole that would negate 3 the intent and effect of the AEDPA limitation period.”); Jimenez v. 4 Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 5 2011 WL 164536 (C.D. Cal. Jan. 13, 2011) (allegations that petitioner 6 was uneducated, illiterate and indigent deemed insufficient); see 7 also Bermudez v. Lewis, 58 Fed. App’x 268, 269 (9th Cir. 2003) (even 8 if the petitioner were “illiterate, indigent [and] ignorant of the 9 law,” these problems “would not constitute extraordinary circumstances 10 preventing timely filing”). 11 12 Moreover, Petitioner has failed to show the requisite diligence 13 to justify equitable tolling. See Gibbs v. LeGrand, 767 F.3d 879, 893 14 (9th Cir. 2014), cert. denied, 575 U.S. 946 (2015). 15 equitable tolling is unavailable to Petitioner. Accordingly, 16 17 V. Equitable Exception for Actual Innocence 18 19 “[A]ctual innocence, if proved, serves as a gateway through which 20 a petitioner may pass whether the impediment is a procedural bar . . . 21 [or] expiration of the statute of limitations.” 22 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934- 23 37 (9th Cir. 2011) (en banc). 24 gateway pleas are rare.” 25 Court must apply the standards for gateway actual innocence claims set 26 forth in Schlup v. Delo, 513 U.S. 298 (1995) (“Schlup”). 27 McQuiggin v. Perkins, 569 U.S. at 386. 28 the threshold requirement unless he persuades the district court that, McQuiggin v. Perkins, However, “tenable actual-innocence McQuiggin v. Perkins, 569 U.S. at 386. 12 The See “[A] petitioner does not meet 1 in light of the new evidence, no juror [or other trier of fact], 2 acting reasonably, would have voted to find him guilty beyond a 3 reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329). 4 5 In order to make a credible claim of actual innocence, a 6 petitioner must “support his allegations of constitutional error with 7 new reliable evidence - whether it be exculpatory scientific evidence, 8 trustworthy eyewitness accounts, or critical physical evidence - that 9 was not presented at trial.” Schlup, 513 U.S. at 324; see also 10 Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 11 541 U.S. 998 (2004) (holding that “habeas petitioners may pass 12 Schlup’s test by offering ‘newly presented’ evidence of actual 13 innocence”); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (“[A] 14 claim of actual innocence must be based on reliable evidence not 15 presented at trial.”). 16 17 “‘[A]ctual innocence’ means factual innocence, not mere legal 18 insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); 19 Calderon v. Thompson, 523 U.S. 538, 559 (1998); Muth v. Fondren, 676 20 F.3d 815, 819, 822 (9th Cir.), cert. denied, 568 U.S. 894 (2012). 21 “The evidence of innocence ‘must be so strong that a court cannot have 22 confidence in the outcome of the trial unless the court is also 23 satisfied that the trial was free of nonharmless constitutional 24 error.’” Lee v. Lampert, 653 F.3d at 937-38 (quoting Schlup, 513 U.S. 25 at 316). The court must consider “‘all the evidence, old and new, 26 incriminating and exculpatory,’ admissible at trial or not.” 27 Lampert, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 28 (2006). Lee v. The court must make a “probabilistic determination about what 13 1 reasonable, properly instructed jurors would do.” 2 v. Bell, 547 U.S. at 538). Id. (quoting House 3 4 Petitioner has produced no evidence, much less new evidence, to 5 demonstrate his alleged actual innocence of the matters as to which he 6 pled guilty. 7 any claim of actual innocence. 8 880, 885 (9th Cir. 2013) (petitioner’s plea “simply undermine[d]” his 9 claim of actual innocence); Chestang v. Sisto, 522 Fed. App’x 389, 390 In any event, Petitioner’s guilty plea tends to refute See Johnson v. Medina, 547 Fed. App’x 10 (9th Cir.), cert. denied, 571 U.S. 1012 (2013) (petitioner’s plea 11 “seriously undermine[d]” his claim of actual innocence); Stonebarger 12 v. Williams, 458 Fed. App’x 627, 629 (9th Cir. 2011), cert. denied, 13 566 U.S. 927 (2012) (denying certificate of appealability on claim of 14 actual innocence, where no reasonable juror would deem petitioner to 15 be actually innocent in light of his confession, his guilty plea and 16 the lack of any facts inconsistent with guilt); People v. McNabb, 228 17 Cal. App. 3d 462, 470-71, 279 Cal. Rptr. 11 (1991) (“the issue of 18 guilt or innocence is waived by a guilty plea”).4 19 20 Therefore, Petitioner is not entitled to an actual innocence 21 equitable exception to the statute of limitations. 22 untimely. 23 /// 24 /// The petition is 25 26 27 28 4 In Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (en banc), cert. denied, 555 U.S. 830 (2008), the Ninth Circuit flagged but declined to decide the issue of when, if ever, an “actual innocence” gateway claim can be available to a petitioner who has pled guilty or no contest. 14 1 ORDER 2 3 The Petition is denied and dismissed with prejudice. 4 5 LET JUDGMENT BE ISSUED ACCORDINGLY. 6 7 DATED: November 24, 2020. 8 9 10 11 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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