(HC) Conriquez v. Adams, No. 1:2009cv01003 - Document 41 (E.D. Cal. 2012)
Court Description: ORDER GRANTING Respondent's 39 and 34 Motion to Dismiss the Fourth and Fifth Claims of the Second Amended Petition as Untimely; ORDER DISMISSING 34 the Fourth and Fifth Claims of the Second Amended Petition as Untimely Filed; ORDER DIRECTI NG Respondent to File a Response to the Remaining Claims as to 33 , in the Second Amended Petition no later than Forty-Five (45) Days after the date of service of this order, signed by Magistrate Judge Sheila K. Oberto on 01/03/2012. (45) Day Deadline to Respond. (Martin-Gill, S)
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(HC) Conriquez v. Adams Doc. 41 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 JAMES CONRIQUEZ, JR., 12 Petitioner, 13 v. 14 DOMINGO URIBE, JR., Warden, 15 Respondent. 16 17 18 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01003-SKO-HC ORDER SUBSTITUTING DOMINGO URIBE, JR., AS RESPONDENT (DOC. 39) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE FOURTH AND FIFTH CLAIMS OF THE SECOND AMENDED PETITION AS UNTIMELY (DOCS. 39, 34) ORDER DISMISSING THE FOURTH AND FIFTH CLAIMS OF THE SECOND AMENDED PETITION AS UNTIMELY FILED (DOC. 34) ORDER DIRECTING RESPONDENT TO FILE A RESPONSE TO THE REMAINING CLAIMS IN THE SECOND AMENDED PETITION NO LATER THAN FORTY-FIVE (45) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER 22 23 Petitioner is a state prisoner proceeding pro se with a 24 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 25 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 26 the jurisdiction of the United States Magistrate Judge to conduct 27 all further proceedings in the case, including the entry of final 28 judgment, by manifesting their consent in writings signed by the 1 Dockets.Justia.com 1 parties or their representatives and filed by Petitioner on 2 August 24, 2009, and on behalf of Respondent on August 18, 2009. 3 Pending before the Court is Respondent’s motion to dismiss 4 the fourth and fifth claims of the second amended petition (SAC), 5 which was served by mail on Petitioner at the California State 6 Prison at Centinela and filed on October 19, 2011, with 7 supporting documentation. 8 or a notice of non-opposition in response to the motion. 9 Pursuant to Local Rule 230(l), the motion is submitted to the Petitioner did not file an opposition 10 undersigned Magistrate Judge on the record and without oral 11 argument. 12 I. 13 In this proceeding, the officer who has custody of the Substitution of Domingo Uribe, Jr., as Respondent 14 petitioner must be named as the respondent. 15 Rule 2(a) of the Rules Governing Section 2254 Cases in the United 16 States District Courts (Habeas Rules). 17 respondent must have the power or authority to provide the relief 18 to which a petitioner is entitled. 19 355 n.3 (9th Cir. 2004). 20 destroys personal jurisdiction. 21 Court, 21 F.3d 359, 360 (9th Cir. 1994). 22 28 U.S.C. § 2242; This is because the Smith v. Idaho, 392 F.3d 350, A failure to name the proper respondent Stanley v. California Supreme Here, Petitioner had alleged in the first amended petition 23 that his place of confinement was the California Substance Abuse 24 Treatment Facility (CSATF) at Corcoran, California, and he named 25 as Respondent Derral G. Adams. 26 Petitioner filed a notice of change of address on September 9, 27 2011, reflecting that he moved to the California State Prison at 28 Centinela (CEN) in Imperial, California, as of that date. (Doc. 34, 1.) 2 Thereafter, (Doc. 1 2 36.) In the motion to dismiss, which was served and filed 3 slightly over a month after Petitioner filed the notice of change 4 of address, Respondent states that the proper Respondent is 5 Kathleen Allison, the Acting Warden of the CSATF. 6 n.1.) 7 institution of confinement is CEN, it does not appear that Acting 8 Warden Allison is the proper respondent. 9 the California Department of Corrections and Rehabilitation 10 (CDCR) reflects that the warden of CEN is presently Domingo 11 Uribe, Jr.1 (Doc. 39, 1 However, because Petitioner has indicated that his present The official website of 12 Fed. R. Civ. P. Rule 25(d) provides that a court may at any 13 time order substitution of a public officer who is a party in an 14 official capacity whose predecessor dies, resigns, or otherwise 15 ceases to hold office. 16 The Court concludes that Domingo Uribe, Jr., Warden at CEN, 17 is an appropriate respondent in this action. 18 that pursuant to Fed. R. Civ. P. 25(d), Warden Uribe be 19 substituted in place of James Walker. It will be ordered 20 II. 21 Respondent has filed a motion to dismiss the petition on the 22 ground that Petitioner filed his petition outside of the one-year 23 limitation period provided for by 28 U.S.C. § 2244(d)(1). 24 Proceeding by a Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases in the 25 1 26 27 28 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). The address of the official website for the CDCR is http://www.cdcr.ca.gov. 3 1 United States District Courts (Habeas Rules) allows a district 2 court to dismiss a petition if it “plainly appears from the face 3 of the petition and any exhibits annexed to it that the 4 petitioner is not entitled to relief in the district court....” 5 The Ninth Circuit has allowed respondents to file motions to 6 dismiss pursuant to Rule 4 instead of answers if the motion to 7 dismiss attacks the pleadings by claiming that the petitioner has 8 failed to exhaust state remedies or has violated the state’s 9 procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 10 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 11 a petition for failure to exhaust state remedies); White v. 12 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 13 review a motion to dismiss for state procedural default); Hillery 14 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 15 Thus, a respondent may file a motion to dismiss after the Court 16 orders the respondent to respond, and the Court should use Rule 4 17 standards to review a motion to dismiss filed before a formal 18 answer. 19 See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, Respondent's motion to dismiss addresses the 20 untimeliness of two claims in the SAC pursuant to 28 U.S.C. 21 2244(d)(1). 22 in copies of the official records of state judicial proceedings 23 which have been provided by Respondent and Petitioner, and as to 24 which there is no factual dispute. 25 filed a formal answer, and because Respondent's motion to dismiss 26 is similar in procedural standing to a motion to dismiss for 27 failure to exhaust state remedies or for state procedural 28 default, the Court will review Respondent’s motion to dismiss The material facts pertinent to the motion are found 4 Because Respondent has not 1 pursuant to its authority under Rule 4. 2 III. 3 In the original petition, Petitioner challenged his 2006 4 conviction of being an inmate in possession of a deadly weapon in 5 violation of Cal. Pen. Code § 4502, and the sentence imposed 6 pursuant to such conviction on May 1, 2007, in action number 7 SF013296A in the Kern County Superior Court. 8 9 Background (Doc. 1, 2.) In the SAC, Petitioner purports to challenge a conviction of being an inmate in possession of a deadly weapon suffered on May 10 1, 2007, in the Los Angeles Superior Court. 11 However, he describes further proceedings in connection with the 12 conviction as including applications to the Kern County Superior 13 Court (KCSC) and the California Court of Appeal, Fifth Appellate 14 District (DCA), with a DCA case number that corresponds to his 15 appeal from the Kern County conviction. 16 (SAC, doc. 34, 1.) (Id. at 2, 7, 11.) In view of this and the documentation submitted by 17 Respondent that refers to the Kern conviction, the Court 18 concludes that in the SAC, Petitioner mistakenly identified the 19 court of conviction as Los Angeles, and that Petitioner is 20 continuing to challenge his 2006 conviction and 2007 sentence 21 imposed in the KCSC. 22 On May 1, 2007, Petitioner was sentenced after conviction 23 for possession of a sharp instrument in violation of Cal. Pen. 24 Code § 4502(a) and after having been found to have sustained two 25 serious or violent prior convictions for purposes of California’s 26 Three Strikes Law, Cal. Pen. Code §§ 667(c)-(j), 1170.12(a)-(e). 27 28 5 1 (LD 2, 4.)2 2 3 On March 18, 2008, the DCA affirmed the conviction on direct appeal. 4 (LD 1.) On or about April 18, 2008, Petitioner filed a petition for 5 review in the California Supreme Court (CSC). 6 petition was summarily denied on May 21, 2008. 7 (LD 2.) The (LD 3.) Petitioner filed his initial federal habeas petition in the 8 United States District Court, Central District of California on 9 May 15, 2009.3 (Doc. 1, 8.) The petition contained five claims, 10 but Petitioner admitted that he had not exhausted his state court 11 remedies as to the fourth claim concerning improper use of a 12 prior conviction and the fifth claim concerning the allegedly 13 ineffective assistance of appellate counsel. 14 31-40.) 15 (Doc. 1, 7; doc. 2, On June 9, 2009, the case was transferred to this Court. 16 (Doc. 8.) 17 petition to permit exhaustion of the unexhausted claims. 18 10.) 19 In July 2009, Petitioner requested a stay of the (Doc. On August 23, 2009, Petitioner filed a petition for writ of 20 21 2 22 3 23 24 25 26 27 “LD” refers to documents lodged by Respondent in support of the motion. The dates on which Petitioner filed his pro se, post-conviction petitions for collateral relief are determined by application of the mailbox rule. Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). It has been held that the date the petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). 28 6 1 habeas corpus in the KCSC (LD 4, pet. form at 6), which was 2 denied on October 26, 2009 (id. at 1). 3 On January 25, 2010, Petitioner filed a petition for writ of 4 habeas corpus in the DCA. 5 was denied on June 2, 2010. 6 (LD 5, pet. form at 6.) The petition (LD 5, 1.) In March 2010, Petitioner’s motion to stay the petition in 7 this action without amendment of the petition was denied because 8 Petitioner had not shown good cause as required by Rhines v. 9 Weber, 544 U.S. 269 (2005). Petitioner was granted leave to file 10 a first amended petition stating only fully exhausted claims and 11 to seek a stay of such a fully exhausted petition pursuant to 12 Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). 13 16.) 14 (Doc. On March 24, 2010, Petitioner filed in this Court a first 15 amended petition (FAP) for writ of habeas corpus containing only 16 exhausted claims and a motion for a stay to permit exhaustion of 17 additional claims. 18 (Doc. 18, 34.) On June 22, 2010, Petitioner filed a petition for writ of 19 habeas corpus in the CSC. 20 was summarily denied on February 16, 2011. 21 (LD 6, pet. form at 6.) The petition (LD 7.) On July 12, 2010, during the pendency of the petition in the 22 CSC, Petitioner’s motion to stay the fully exhausted FAP in this 23 Court was granted, and Petitioner filed periodic status reports 24 concerning exhaustion of the unexhausted claims. 25 (Doc. 21.) After this Court dissolved the stay in this action and the 26 CSC denied the petition pending before it in February 2011, 27 Petitioner lodged in this Court the SAC on March 8, 2011, and it 28 was ordered filed on July 21, 2011. 7 (Docs. 32, 48; docs. 32-34.) 1 The SAC (doc. 34) contains not only the three previously 2 exhausted claims, but also fourth and fifth claims concerning 3 improper use of a prior conviction and the allegedly ineffective 4 assistance of appellate counsel. 5 IV. 6 Respondent moves to dismiss the recently exhausted fourth 7 Timeliness of the Fourth and Fifth Claims and fifth claims on the ground of untimeliness. 8 9 A. The Statute of Limitations On April 24, 1996, Congress enacted the Antiterrorism and 10 Effective Death Penalty Act of 1996 (AEDPA). 11 to all petitions for writ of habeas corpus filed after the 12 enactment of the AEDPA. 13 (1997). 14 habeas corpus on May 15, 2009. 15 petition. 16 The AEDPA applies Lindh v. Murphy, 521 U.S. 320, 327 Petitioner filed his original petition for writ of Thus, the AEDPA applies to the The AEDPA provides a one-year period of limitation in which 17 a petitioner must file a petition for writ of habeas corpus. 18 U.S.C. § 2244(d)(1). 19 20 28 As amended, subdivision (d) reads: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 21 22 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 23 24 25 filing an violation States is filing by (B) the date on which the impediment to application created by State action in of the Constitution or laws of the United removed, if the applicant was prevented from such State action; 26 27 28 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; 8 1 or 2 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 3 4 5 6 7 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). 8 9 B. Commencement of the Running of the Statutory Period It does not appear that 28 U.S.C. § 2244(d)(1)(B) through 10 (D) are applicable in this case. 11 determined pursuant to § 2244(d)(1)(A). 12 Therefore, finality will be Under § 2244(d)(1)(A), the “judgment” refers to the sentence 13 imposed on the petitioner. 14 57 (2007). 15 2007. 16 Burton v. Stewart, 549 U.S. 147, 156- The last sentence was imposed on Petitioner on May 1, Under § 2244(d)(1)(A), a judgment becomes final either upon 17 the conclusion of direct review or the expiration of the time for 18 seeking such review in the highest court from which review could 19 be sought. 20 2001). 21 upon either 1) the conclusion of all direct criminal appeals in 22 the state court system, followed by either the completion or 23 denial of certiorari proceedings before the United States Supreme 24 Court; or 2) if certiorari was not sought, then by the conclusion 25 of all direct criminal appeals in the state court system followed 26 by the expiration of the time permitted for filing a petition for 27 writ of certiorari. 28 Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. The statute commences to run pursuant to § 2244(d)(1)(A) Wixom, 264 F.3d at 897 (quoting Smith v. 9 1 U.S. 1187 (1999)). 2 sought certiorari from the United States Supreme Court. Neither party has indicated that Petitioner 3 Here, Petitioner’s direct criminal appeals in the state 4 court system concluded when his petition for review was denied by 5 the CSC on May 21, 2008. 6 review was final immediately upon filing. 7 Rule 8.532(b)(2)(A). 8 was ninety days. 9 1157, 1159 (9th Cir. 1999). 10 The CSC’s denial of the petition for Cal. Rules of Court, The time permitted for seeking certiorari Supreme Court Rule 13; Bowen v. Roe, 188 F.3d The Court will apply Fed. R. Civ. P. 6(a) in calculating the 11 pertinent time periods. 12 n.2 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010). 13 Applying Fed. R. Civ. P. 6(a)(1)(A), the day of the triggering 14 event is excluded from the calculation. 15 period commenced on May 22, 2008, the day following the finality 16 of the judgment that resulted from the CSC’s denial of review. 17 Applying Fed. R. Civ. P. 6(a)(1)(B), which requires counting 18 every day, the ninetieth day was August 19, 2008. 19 judgment became final within the meaning of § 2244(d)(1)(A) on 20 August 19, 2008. 21 See, Waldrip v. Hall, 548 F.3d 729, 735 Thus, the ninety-day Thus, the Therefore, the one-year limitation period began to run on 22 August 20, 2008, and concluded one year later on August 19, 2009. 23 Fed. R. Civ. P. 6(a). 24 25 C. Statutory Tolling Title 28 U.S.C. § 2244(d)(2) states that the “time during 26 which a properly filed application for State post-conviction or 27 other collateral review with respect to the pertinent judgment or 28 claim is pending shall not be counted toward” the one-year 10 1 limitation period. 2 on notice that his habeas petition may be subject to dismissal 3 based on the statute of limitations, he has the burden of 4 demonstrating that the limitations period was sufficiently tolled 5 by providing the pertinent facts, such as dates of filing and 6 denial. 7 (citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002), 8 abrogation on other grounds recognized by Moreno v. Harrison, 245 9 Fed.Appx. 606 (9th Cir. 2007)). 10 28 U.S.C. § 2244(d)(2). Once a petitioner is Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009) Here, Petitioner’s first state court petition for collateral 11 review was the petition filed in the KCSC on August 23, 2009. 12 Respondent correctly contends that Petitioner is not entitled to 13 statutory tolling. 14 period of time between the finality of an appeal and the filing 15 of an application for post-conviction or other collateral review 16 in state court because no state court application is “pending” 17 during that time. 18 Cir. 1999); Raspberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th 19 Cir. 2006). 20 period between the finality of an appeal and the filing of a 21 federal petition. 22 limitation period is not tolled during the time that a federal 23 habeas petition is pending. 24 (2001). 25 tolling where the limitation period has already run prior to 26 filing a state habeas petition. 27 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th 28 Cir. 2001). No statutory tolling is allowed for the Nino v. Galaza, 183 F.3d 1003, 1006-1007 (9th Similarly, no statutory tolling is allowed for the Nino, 183 F.3d at 1007. In addition, the Duncan v. Walker, 533 U.S. 167, 172 Further, a petitioner is not entitled to statutory Ferguson v. Palmateer, 321 F.3d 11 1 Here, the limitation period concluded on August 19, 2009. 2 Thus, it had already run by the time Petitioner initiated his 3 first state post-conviction collateral proceeding by filing a 4 habeas petition in the KCSC on August 23, 2009. 5 Petitioner has not shown that he is entitled to the benefit of 6 statutory tolling. 7 Accordingly, In summary, Petitioner’s original petition was filed on May 8 15, 2009, before the limitation period ran in August 2009. 9 the original petition was timely filed. Thus, However, Petitioner’s 10 SAC was not filed until after the expiration of the limitation 11 period. 12 13 D. Timeliness of the Recently Exhausted Claims Respondent argues that Petitioner’s two recently exhausted 14 claims are untimely because they do not “relate back” to the date 15 of the timely filed initial petition. 16 A habeas petition “may be amended... as provided in the 17 rules of procedure applicable to civil actions.” 18 § 2242. 19 proceedings. 20 Corpus Rule 11; Mayle v. Felix, 545 U.S. 644, 655 (2005). 21 28 U.S.C. Fed. R. Civ. P. 15 is applicable to habeas corpus 28 U.S.C. § 2242; Fed. R. Civ. P. 81(a)(2); Habeas An amendment to a pleading relates back to the date of the 22 original pleading when 1) the law that provides the applicable 23 statute of limitations allows relation back, 2) the amendment 24 asserts a claim or defense that arose out of the conduct, 25 transaction, or occurrence set out, or attempted to be set out, 26 in the original pleading, or 3) the amendment changes a party or 27 the naming of a party under specified circumstances. 28 Civ. P. 15(c)(1). Fed. R. In a habeas corpus case, the “original 12 1 pleading” referred to in Rule 15 is the petition. 2 Felix, 545 U.S. at 655. 3 complaint in an ordinary civil case, however. 4 cases, notice pleading is sufficient; however, Habeas Rule 2(c) 5 requires that a habeas petition not simply meet the general 6 standard of notice pleading, but rather specify all the grounds 7 for relief available to the petitioner and state the facts 8 supporting each ground. 9 Mayle v. A habeas petition differs from a In ordinary civil Mayle v. Felix, 545 U.S. at 655. Relation back is appropriate in habeas cases where the 10 original and amended petitions state claims that are tied to a 11 common core of operative facts. 12 claims added by amendment must arise from the same core facts as 13 the timely filed claims and must depend upon events not separate 14 in “both time and type” from the originally raised episodes. 15 Mayle, 545 U.S. at 657. 16 or occurrence” in Fed. R. Civ. P. 15(c)(1)(B) are not interpreted 17 so broadly that it is sufficient that a claim first asserted in 18 an amended petition concerns the same trial, conviction, or 19 sentence that was the subject of a claim in an original petition. 20 Mayle v. Felix, 545 U.S. 656-57. 21 that the petitioner’s pretrial statements, which were the subject 22 of an amended petition, were separated in time and type from a 23 witness’s videotaped statements, which occurred at a different 24 time and place and were the basis of a claim in the original 25 petition. 26 U.S. at 657, 659-60. 27 28 Mayle, 545 U.S. at 664. The Thus, the terms “conduct, transaction, In Mayle, the Court concluded Thus, relation back was not appropriate. Mayle, 545 Here, unexhausted claims set forth in the original petition were withdrawn or dismissed from a petition which included other, 13 1 exhausted claims. 2 an amendment to the pending petition. 3 were stayed pending exhaustion of the two unexhausted claims, the 4 stay was not based on a showing of good cause pursuant to Rhines 5 v. Weber, 544 U.S. 269 (2005). 6 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). 7 Therefore, the stay did not protect the unexhausted claims from 8 untimeliness while the Petitioner attempted to exhaust them. 9 King v. Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009). Once exhausted, the claims were the subject of Although the proceedings Instead, the stay was granted In such 10 cases, to determine whether a claim relates back to an earlier 11 claim, Mayle requires a comparison of the petitioner’s new claims 12 to the properly exhausted claims left pending, and not to the 13 unexhausted claims in an earlier version of the petition that 14 were subsequently dismissed for failure to exhaust. 15 Ryan, 564 F.3d at 1142. 16 King v. Petitioner alleged the following claims in his original 17 petition as to which state court remedies had been exhausted:4 18 1) admission at trial of Petitioner’s out-of-court statement 19 violated Miranda and Petitioner’s Fifth Amendment right to remain 20 silent, and trial counsel rendered ineffective assistance by 21 failing to object to or move to exclude the statement; 2) the 22 prosecutor committed prejudicial misconduct and violated 23 Petitioner’s right to due process of law by misstating the 24 reasonable doubt standard and vouching for the sole prosecution 25 witness, and Petitioner’s trial counsel rendered ineffective 26 assistance in failing to object and request that the jury be 27 28 4 The petition includes the petition form and a separately docketed memorandum which actually sets forth the claims. (Doc. 1, 5-6; doc. 2, 2-3.) 14 1 admonished; and 3) cumulative prejudice resulting from the 2 multiple instances of ineffective assistance of counsel violated 3 Petitioner’s right to due process of law. (Doc. 2, 1-31.) 4 The first claim which Petitioner sought to add to the SAC is 5 that the trial court improperly used a prior conviction or abused 6 its discretion in failing to strike a prior conviction because 7 one of the prior convictions used by the court to increase 8 Petitioner’s sentence was found to be true at a court trial, and 9 Petitioner had not been warned that the prior conviction could be 10 used to enhance a sentence. 11 concerns the conduct of the trial court in considering a motion 12 concerning a prior conviction or prison term relevant to 13 sentencing, or in relying on the prior conviction in sentencing 14 Petitioner. 15 (SAC, doc. 34, 37-45.) This claim In contrast, the exhausted claims in the original petition 16 all related to the conduct of trial counsel, which was alleged to 17 have been ineffective in relation to objecting to the admission 18 of evidence and prosecutorial misconduct. 19 the prior conviction relates to the sentencing process, whereas 20 the originally exhausted claims concerning counsel relate to the 21 guilt phase of the trial. 22 events separate in both time and type. 23 the trial court’s consideration and use of the prior conviction 24 and the exhausted claims concerning trial counsel’s ineffective 25 assistance did not arise out of the same conduct, transaction or 26 occurrence. 27 Cir. 2008), cert. denied 129 S.Ct. 2791 (2009) (holding that a 28 new claim concerning a due process violation based on jury The claim concerning The two sets of claims depend on The new claim concerning Cf., Hebner v. McGrath, 543 F.3d 1133, 1137-39 (9th 15 1 instructions concerning the standard of proof was not based on 2 the same common core of operative facts as a claim concerning 3 admission of testimony at the same trial; the later claim related 4 to jury instructions, whereas the original claim related to the 5 evidence introduced at trial). 6 pursuant to Habeas Rule 2(c), the facts underlying each claim 7 must be set forth, and the relevant facts relating to the two 8 claims before the court were separate and distinct. 9 claims involved separate occurrences. As the court in Hebner noted, Thus, the Id. at 1139. 10 The Court concludes that Petitioner’s fourth claim 11 concerning the sentencing court’s use of the prior conviction 12 does not relate back to Petitioner’s originally filed petition. 13 The other claim in the SAC that Petitioner seeks to relate 14 back to claims in the original petition is that appellate counsel 15 was ineffective for failing to present on appeal the preceding 16 argument concerning the prior conviction. 17 Although both the new claim concerning appellate counsel and the 18 originally exhausted claims concerning trial counsel relate to 19 the conduct of counsel, they relate to separate errors and to the 20 conduct of separate attorneys at two distinct phases of the case. 21 One claim relates to counsel’s failure to raise objections to 22 trial evidence and alleged prosecutorial misconduct that occurred 23 during the guilt phase of the trial; the other relates to 24 appellate counsel’s failure to raise a sentencing issue during 25 the appellate process. 26 that they share the same legal theory of violation of the right 27 to counsel by counsel’s allegedly substandard omissions. 28 sense, they concern alleged misfeasance of the same general type. (SAC, doc. 34, 45-46.) The main similarity among the claims is 16 In this 1 However, the events that form the basis of the claims are 2 separate in both time and type. 3 separate set of facts supporting the grounds for relief, or a 4 separate occurrence. 5 is not sufficient to show a common core of facts. 6 Each incident involved a Cf. Mayle v. Felix, 545 U.S. at 661. This The Court concludes that the claim concerning appellate 7 counsel did not arise out of the same conduct or occurrence as 8 the exhausted claims concerning trial counsel. 9 States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (holding that a Accord, United 10 claim of ineffective assistance of counsel in failing to explain 11 the consequences of a guilty plea did not relate back to a claim 12 alleging a violation of due process based on the trial court’s 13 failure to advise the defendant of the same consequences); United 14 States v. Duffus, 174 F.3d 333, 337 (3rd Cir. 1999) (holding that 15 a claim of ineffective assistance of counsel in failing to move 16 to suppress evidence did not relate back to a claim of 17 ineffective assistance of counsel in failing to argue on appeal 18 the insufficiency of the evidence to support the conviction); 19 United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999) 20 (holding that a claim of ineffective assistance of counsel 21 predicated on the failure to file an appeal as instructed did not 22 relate back to claims of ineffective assistance of counsel in 23 failing to pursue a downward departure for substantial 24 assistance, make objections in the trial proceedings, and 25 challenge a prior state conviction). 26 In summary, although Petitioner’s original petition was 27 filed before the expiration of the limitation period of 28 § 2244(d), his newly exhausted claims concerning alleged trial 17 1 court error concerning the prior conviction and the ineffective 2 assistance of appellate counsel were filed after the running of 3 the statute. 4 the initially exhausted claims that were timely filed and 5 remained in the petition while the proceedings were stayed 6 pending further exhaustion of state court remedies. 7 The newly exhausted claims do not relate back to Therefore, the two newly exhausted claims were untimely 8 filed. 9 will be granted. Respondent’s motion to dismiss the two claims as untimely 10 V. 11 On July 21, 2011, Respondent was directed to file a response Response to the SAC 12 to the SAC. 13 to dismiss addressed in this order. 14 (Doc. 33.) In response, Respondent filed the motion Respondent will now be ordered to file a response to the 15 claims that remain in the SAC. 16 than forty-five (45) days after the date of service of this 17 order. 18 if any, are to be in accordance with the terms of the Court’s 19 order of July 21, 2011. The response will be due no later Otherwise, the filing of the response and the traverse, 20 VI. 21 Accordingly, it is ORDERED that: 22 1) 23 24 Disposition The Clerk SUBSTITUTE Domingo Uribe, Jr., Warden of the California State Prison at Centinela, as Respondent; and 2) Respondent’s motion to dismiss the fourth claim 25 concerning the prior conviction and the fifth claim concerning 26 appellate counsel’s allegedly ineffective assistance in not 27 raising the prior conviction issue is GRANTED; and 28 3) Petitioner’s fourth claim concerning the prior 18 1 conviction and fifth claim concerning the ineffective assistance 2 of appellate counsel are DISMISSED as untimely filed; and 3 4) Respondent is DIRECTED to file no later than forty-five 4 (45) days after the date of service of this order a response to 5 the remaining claims in the SAC in accordance with the directions 6 of the Court in the Court’s order of July 21, 2011 (doc. 33). 7 8 IT IS SO ORDERED. 9 Dated: ie14hj January 3, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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