(HC) Fernandez v. McEwen, No. 1:2010cv00626 - Document 20 (E.D. Cal. 2012)
Court Description: ORDER SUBSTITUTING Leland McEven as Respondent; FINDINGS and RECOMMENDATIONS to Grant 17 Respondent's MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition With Prejudice, Enter Judgment for Respondent, and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 1/3/12, referred to Judge Ishii. Objections Due Within Thirty Days. (Marrujo, C)
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(HC) Fernandez v. McEwen Doc. 20 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICKY FERNANDEZ, 10 Petitioner, 11 12 13 v. LELAND McEWEN, Warden, Respondent. 14 ) ) ) ) ) ) ) ) ) ) 1:10-cv—00626-AWI-SKO-HC ORDER SUBSTITUTING LELAND McEWEN AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 17, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITH PREJUDICE (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 15 16 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. The matter has been referred to the 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. Pending before the Court is Respondent’s 23 motion to dismiss the petition for untimeliness, which was served 24 and filed on August 25, 2011, along with lodged documents. 25 Petitioner did not file an opposition or a notice of non26 opposition. Pursuant to Local Rule 230(l), the motion is 27 submitted for decision without oral argument. 28 1 Dockets.Justia.com 1 I. 2 Respondent states that the current warden of the Pleasant Substitution of Respondent 3 Valley State Prison (PVSP), Petitioner’s place of confinement at 4 the time of the filing of the motion to dismiss, is Robert H. 5 Trimble. 6 respondent. 7 2011, Petitioner filed a notice that his custodial institution 8 has changed to the Calipatria State Prison. 9 warden at that institution is Leland McEwen. 10 Respondent requests his substitution as the named The Court notes, however, that on September 26, The current acting Accordingly, it is ORDERED that Leland McEwen be SUBSTITUTED 11 as Respondent in this matter pursuant to Rule 25(d) of the 12 Federal Rules of Civil Procedure. 13 States, 982 F.2d 378, 379 (9th Cir. 1992). See, Brittingham v. United 14 II. 15 Respondent has filed a motion to dismiss the petition on the 16 17 Motion to Dismiss for Untimeliness ground that the petition was untimely filed. Rule 4 of the Rules Governing Section 2254 Cases in the 18 United States District Courts (Habeas Rules) allows a district 19 court to dismiss a petition if it “plainly appears from the face 20 of the petition and any exhibits annexed to it that the 21 petitioner is not entitled to relief in the district court....” 22 In the Ninth Circuit, respondents have been allowed to file 23 a motion to dismiss pursuant to Rule 4 instead of an answer if 24 the motion to dismiss attacks the pleadings by claiming that the 25 petitioner has failed to exhaust state remedies or has violated 26 the state’s procedural rules. 27 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion 28 to dismiss a petition for failure to exhaust state remedies); See, e.g., O’Bremski v. Maass, 915 2 1 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 2 4 to review a motion to dismiss for state procedural default); 3 Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) 4 (same). 5 the Court orders the respondent to respond, and the Court should 6 use Rule 4 standards to review a motion to dismiss filed before a 7 formal answer. 8 9 Thus, a respondent may file a motion to dismiss after See, Hillery, 533 F. Supp. at 1194 & n. 12. In this case, Respondent's motion to dismiss addresses the timing of the filing of the petition. The material facts 10 pertinent to the motion are mainly to be found in copies of the 11 official records of state judicial proceedings which have been 12 provided by Respondent and Petitioner, and as to which there is 13 no factual dispute. 14 answer and because Respondent's motion to dismiss is similar in 15 procedural standing to a motion to dismiss for failure to exhaust 16 state remedies or for state procedural default, the Court will 17 review Respondent’s motion to dismiss pursuant to its authority 18 under Rule 4. Because Respondent has not filed a formal 19 III. 20 On April 24, 1996, Congress enacted the Antiterrorism and The Limitations Period 21 Effective Death Penalty Act of 1996 (AEDPA), which applies to all 22 petitions for writ of habeas corpus filed after its enactment. 23 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 24 F.3d 1484, 1499 (9th Cir. 1997). 25 26 Application of the mailbox rule results in a finding that Petitioner filed his petition for writ of habeas corpus on April 27 28 3 1 2 5, 2010.1 (Pet. 13.) Thus, the AEDPA applies to the petition. The AEDPA provides a one-year period of limitation in which 3 a petitioner must file a petition for writ of habeas corpus. 4 U.S.C. § 2244(d)(1). 5 state proceedings for collateral review as a basis for tolling 6 the running of the period. 7 8 28 It further identifies the pendency of some As amended, subdivision (d) provides: (d)(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 –- 9 (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; 10 11 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 12 13 14 (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; or 15 16 17 18 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 19 20 21 22 (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. 23 1 24 25 26 27 28 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)). Here, the Court infers that the date the petition was signed is the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. See, 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). 4 1 28 U.S.C. § 2244(d). 2 IV. 3 Petitioner pled no contest in the Merced County Superior Background 4 Court to murder and admitted a sentencing enhancement. 5 11, 1996, Petitioner was sentenced to an indeterminate state 6 prison term of thirty-five years to life. (LD 1.)2 7 did not appeal his sentence. 8 9 10 On June Petitioner Petitioner filed three pro se state post-conviction collateral challenges to the pertinent judgment, all in the form of petitions for writs of habeas corpus. 11 On October 5, 2008, Petitioner filed the first petition in 12 the Merced County Superior Court (LD 2); the petition was denied 13 on October 28, 2008 (LD 3, 1). 14 claims on the merits, but it also ruled that the petition was 15 untimely under In re Robbins, 18 Cal.4th 770, 780-81 (1998), and 16 that Petitioner had failed to justify the substantial, twelve- 17 year delay between his sentencing and the filing of the petition 18 for habeas relief pursuant to In re Clark, 5 Cal.4th 750, 759. 19 (Id. at 1-3.) 20 The Superior Court denied the On October 31, 2008, Petitioner filed a petition in the 21 California Court of Appeal, Fifth Appellate District (DCA) (LD 22 4), which summarily denied the petition on November 13, 2008 (LD 23 5). 24 On October 27, 2009, Petitioner filed a petition in the 25 California Supreme Court (LD 6), which denied the petition on 26 April 14, 2010, with a citation to In re Robbins, 18 Cal.4th 770, 27 28 2 “LD” refers to documents lodged by Respondent in support of the motion to dismiss. 5 1 2 3 4 780 (1998) (LD 7). Petitioner filed his federal habeas petition in the instant action on April 5, 2010. (Pet., doc. 1, 13.) V. Analysis 5 6 A. Commencement of the Running of the Statute Respondent contends that pursuant to § 2244(d)(1)(A), the 7 limitation period ran from the date on which the judgment became 8 final. 9 Under § 2244(d)(1)(A), the “judgment” refers to the sentence 10 imposed on the petitioner. 11 57 (2007). Burton v. Stewart, 549 U.S. 147, 156- Sentence was imposed on Petitioner on June 11, 1996. 12 Additionally, pursuant to § 2244(d)(1)(A), a judgment 13 becomes final either upon the conclusion of direct review or the 14 expiration of the time for seeking such review in the highest 15 court from which review could be sought. 16 264 F.3d 894, 897 (9th Cir. 2001). 17 appeal from the judgment. 18 convicted, he was required by state law to perfect an appeal by 19 filing a notice or a statement in support of a certificate of 20 probable cause within sixty (60) days after judgment was 21 rendered. 22 1237.5. 23 sentencing would have expired on August 10, 1996. 24 Wixom v. Washington, Petitioner did not file an At the time when Petitioner was Cal. Ct. R. 31(d) [now R. 8.308]; Cal. Pen. Code § In Petitioner’s case, the sixty-day period following The Court will apply Fed. R. Civ. P. 6(a) in calculating the 25 pertinent time periods. 26 Hall, 548 F.3d 729, 735 n.2 (9th Cir. 2008); Patterson v. 27 Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) (holding 28 analogously that the correct method for computing the running of Fed. R. Civ. P. 6(a); see, Waldrip v. 6 1 the one-year grace period after the enactment of AEDPA is 2 pursuant to Fed. R. Civ. P. 6(a), in which the day upon which the 3 triggering event occurs is not counted). 4 that the one-year limitation period would have commenced on 5 August 11, 1996, the day following the last day of the sixty-day 6 period, and it would have continued to run, absent applicable 7 statutory or equitable tolling, until it expired 365 days later 8 on August 11, 1997. 9 The Court concludes Here, the petition was filed on April 5, 2010. Thus, absent 10 any tolling, it was filed outside the one-year limitation period 11 provided for by the statute. 12 B. Statutory Tolling pursuant to 28 U.S.C. § 2244(d)(2) 13 Title 28 U.S.C. § 2244(d)(2) states that the “time during 14 which a properly filed application for State post-conviction or 15 other collateral review with respect to the pertinent judgment or 16 claim is pending shall not be counted toward” the one-year 17 limitation period. 28 U.S.C. § 2244(d)(2). 18 Once a petitioner is on notice that his habeas petition may 19 be subject to dismissal based on the statute of limitations, he 20 has the burden of demonstrating that the limitation period was 21 sufficiently tolled by providing pertinent dates of filing and 22 denial, although the state must affirmatively argue that the 23 petitioner failed to meet his burden of alleging the tolling 24 facts; simply noting the absence of such facts is not sufficient. 25 Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002). 26 Here, Petitioner did not file his first state petition for 27 collateral relief until October 5, 2008. 28 7 Thus, the statutory 1 period had run by the time any application for collateral relief 2 was filed in the state courts. 3 A petitioner is not entitled to statutory tolling where the 4 limitation period has already run prior to filing a state habeas 5 petition. 6 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 7 Petitioner has not met his burden of showing that the running of 8 the statute was tolled by the pendency of a properly filed state 9 petition. 10 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. Thus, Further, as Respondent notes, Petitioner’s proceedings for 11 collateral relief in state court were not properly filed. 12 application for state post-conviction or other collateral review 13 is “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2) 14 when its delivery and acceptance are in compliance with the 15 applicable laws and rules governing filings, such as provisions 16 concerning the form of the document, the time limits upon its 17 delivery, the court and office in which it must be lodged, and 18 the requisite filing fee. 19 (2000). 20 limitation period because state time limits are conditions to 21 filing which render a petition not “properly filed” within the 22 meaning of 28 U.S.C. § 2244(d)(2). 23 408, 417 (2005) (petition rejected by state courts as untimely). 24 Here, Petitioner’s first and third state petitions were An Artuz v. Bennett, 531 U.S. 4, 8 An untimely petition does not toll the running of the Pace v. DiGuglielmo, 544 U.S. 25 expressly found untimely by the state courts. 26 denied the first state petition, finding in pertinent part that 27 the petition was untimely under In re Robbins (1998) 18 Cal.4th 28 770, 780-781. (LD 3.) The Superior Court The California Supreme Court denied the 8 1 third state petition with a citation to In re Robbins, 18 Cal.4th 2 at 780. 3 and repetitious claims will not be condoned; a citation to 4 Robbins at 780 means that the petition was untimely. 5 Palmer, 479 F.3d 643, 645 (9th Cir. 2007). 6 (LD 7.) Robbins stands for the proposition that delayed Thorson v. The second state petition was denied without comment or 7 citation. 8 did not silently disregard the last reasoned opinion of the 9 Superior Court (LD 3), in which the court found the petition was (LD 5.) It is presumed that the state appellate court 10 procedurally deficient. 11 803-06 (1991). 12 Cf. Ylst v. Nunnemaker, 501 U.S. 797, Thus, in addition to having been too late to toll the 13 statute, Petitioner’s three state petitions were not properly 14 filed and did not toll the limitations period for purposes of 28 15 U.S.C. § 2244(d)(2). 16 Pace v. DiGulielmo, 544 U.S. 408, 414-15. It is concluded that the running of the limitations period 17 was not tolled by Petitioner’s state court filings pursuant to 18 § 2244(d)(2). 19 20 C. Equitable Relief from the Statute In the absence of opposition to the motion, the Court has 21 reviewed the petition and notes that although Petitioner did not 22 raise any basis for equitable tolling, he did argue that he was 23 actually innocent. 24 In Lee v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011), the 25 court held that a credible claim of actual innocence constitutes 26 an equitable exception to ADEPA’s statute of limitations, and a 27 petitioner who makes such a showing may pass through the Schlup 28 gateway and have his otherwise time-barred claims heard on the 9 1 merits. 2 demonstrates that it is more likely than not that no reasonable 3 juror would have found him guilty beyond a reasonable doubt, the 4 petitioner may pass through the Schlup gateway and have his 5 constitutional claims heard on the merits. 6 Thus, if an otherwise time-barred habeas petitioner Lee, 653 F.3d at 937. It is the petitioner’s burden to produce sufficient proof of 7 actual innocence to bring him within the narrow class of cases 8 implicating a fundamental miscarriage of justice. 9 Lampert, 653 F.3d at 937. Lee v. The Petitioner must submit new, 10 reliable evidence that undercuts the reliability of the proof of 11 guilt and is so strong that a court cannot have confidence in the 12 outcome of the trial unless the court is also satisfied that the 13 trial was free of non-harmless constitutional error. 14 38 (citing Schlup v. Delo, 513 U.S. 298, 314–16 (1995)). 15 evidence may be exculpatory scientific evidence, trustworthy 16 eyewitness accounts, and critical physical evidence. 17 petitioner must show that it is more likely than not that no 18 reasonable juror would have convicted him in light of the new 19 evidence. 20 a probabilistic determination of what reasonable, properly 21 instructed jurors would do. 22 expressly declined to decide what level, if any, of diligence is 23 required for one raising the equitable exception of actual 24 innocence. 25 Id. at 937The A The Court considers all new and old evidence and makes Id. at 938. The court in Lee Lee v. Lampert, 653 F.3d at 934 n.9. Here, the facts of Petitioner’s commitment offense, as set 26 forth by Petitioner, are that Petitioner, who was armed with a 27 .22 caliber semi-automatic rifle, exited a vehicle along with 28 armed and unarmed companions and demanded that the victim and her 10 1 companion hand over their money. 2 with the two robbery victims, during which a bullet fired by 3 Petitioner injured and killed the victim. 4 were the subject of a stipulation that formed the factual basis 5 for the plea which Petitioner now seeks to set aside. 6 23-24.) 7 murder with use of a firearm, which was prosecuted on a felony 8 murder theory of a killing that occurred during the commission of 9 an inherently dangerous felony. 10 (Pet. 6.) A “gunfight” ensued Id. Identical facts (Id. at Petitioner entered a plea of no contest to first degree (Id. at 22-23.) In California, murder is the killing of a human being with 11 malice aforethought. 12 either express, where there is manifested a deliberate intention 13 to take away the life of a fellow creature, or implied, where 14 there is an absence of considerable provocation, or when the 15 circumstances attending the killing show an abandoned and 16 malignant heart. 17 killing of a human being, whether intentional, unintentional, or 18 accidental, which occurs as a result of the commission of, or an 19 attempt to commit, the crime of robbery is murder of the first 20 degree where the perpetrator had the specific intent to commit 21 robbery. 22 49 (2009). 23 murder is not malice or an intent to kill, but simply the 24 specific intent to commit the underlying felony; no intent to 25 kill, deliberation, premeditation, or malice aforethought is 26 needed. 27 28 Cal. Pen. Code § 187(a). Cal. Pen. Code § 188. Malice may be However, the unlawful Cal. Pen. Code § 189; People v. Friend, 47 Cal.4th 1, The mental state required for first degree felony People v. Gutierrez, 28 Cal.4th 1083, 1140-41 (2002). In California, robbery is defined as the felonious taking of personal property in the possession of another, from his person 11 1 or immediate presence, and against his will, accomplished by 2 means of force or fear. 3 include those of theft, i.e., taking property from the possession 4 of the victim with the intent permanently to deprive the victim 5 of the property, plus the application of force or fear to obtain 6 property in the immediate presence of the victim. 7 Nguyen, 24 Cal.4th 756, 761-762 (2001); People v. Rush, 16 8 Cal.App.4th 20, 23 (1993); People v. Dominguez, 38 Cal.App.4th 9 410, 416 (1995). 10 Cal. Penal Code § 211. The elements People v. Here, Petitioner stipulated at the time of his plea that he 11 armed himself with a rifle, undertook with others to rob two 12 people, initiated the robbery by demanding the victim’s money, 13 and shot one of the robbery victims in a conflict that 14 immediately ensued. 15 that Petitioner specifically intended to rob the victims because 16 it may be inferred that his purpose was to deprive the victims of 17 property on their persons by means of force or fear. 18 reasonable juror could further have concluded that the killing 19 occurred in the course of, and as a result of, the perpetration 20 or attempted perpetration of robbery, a felony listed in Cal. 21 Pen. Code § 189. A reasonable trier of fact could conclude A 22 Accordingly, the Court concludes that Petitioner has not 23 presented new, reliable evidence that renders it more likely than 24 not that no reasonable juror would have convicted him in light of 25 the new evidence. 26 of actual innocence of the crime of first degree felony murder 27 that would warrant an equitable exception to the statute of 28 limitations. Petitioner has not made the required showing 12 1 In summary, the Court finds that the facts concerning the 2 various state proceedings are undisputed. 3 outside of the one-year statutory period, and Petitioner failed 4 to demonstrate his entitlement to relief from the bar of the 5 statute of limitations. 6 Respondent’s motion to dismiss the petition as untimely be 7 granted. 8 VI. 9 Unless a circuit justice or judge issues a certificate of The petition was filed Accordingly, it will be recommended that Certificate of Appealability 10 appealability, an appeal may not be taken to the court of appeals 11 from the final order in a habeas proceeding in which the 12 detention complained of arises out of process issued by a state 13 court. 14 U.S. 322, 336 (2003). 15 only if the applicant makes a substantial showing of the denial 16 of a constitutional right. 17 petitioner must show that reasonable jurists could debate whether 18 the petition should have been resolved in a different manner or 19 that the issues presented were adequate to deserve encouragement 20 to proceed further. 21 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 22 certificate should issue if the Petitioner shows that jurists of 23 reason would find it debatable whether the petition states a 24 valid claim of the denial of a constitutional right and, with 25 respect to procedural issues, that jurists of reason would find 26 it debatable whether the district court was correct in any 27 procedural ruling. 28 (2000). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, 529 U.S. 473, 483-84 13 1 In determining this issue, a court conducts an overview of 2 the claims in the habeas petition, generally assesses their 3 merits, and determines whether the resolution was debatable among 4 jurists of reason or wrong. 5 applicant to show more than an absence of frivolity or the 6 existence of mere good faith; however, it is not necessary for an 7 applicant to show that the appeal will succeed. Id. It is necessary for an Id. at 338. 8 A district court must issue or deny a certificate of 9 appealability when it enters a final order adverse to the 10 applicant. 11 Habeas Rule 11(a). Here, because the facts concerning the various state 12 proceedings are undisputed, and because Petitioner failed to 13 demonstrate by specific facts his entitlement to relief from the 14 bar of the statute of limitations, jurists of reason would not 15 find it debatable whether the Court was correct in its ruling. 16 Accordingly, it is concluded that Petitioner has not made a 17 substantial showing of the denial of a constitutional right, and 18 it will be recommended that the Court decline to issue a 19 certificate of appealability. 20 VII. Recommendations 21 Accordingly, it is RECOMMENDED that: 22 1) Respondent’s motion to dismiss the petition be GRANTED; 23 and 24 25 2) The petition for writ of habeas corpus be DISMISSED with prejudice as untimely filed; and 26 27 28 3) The Clerk be DIRECTED to enter judgment for Respondent; and 4) The Court DECLINE to issue a certificate of 14 1 appealability. 2 These findings and recommendations are submitted to the 3 United States District Court Judge assigned to the case, pursuant 4 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 5 the Local Rules of Practice for the United States District Court, 6 Eastern District of California. 7 being served with a copy, any party may file written objections 8 with the Court and serve a copy on all parties. 9 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after Such a document 10 and Recommendations.” 11 and filed within fourteen (14) days (plus three (3) days if 12 served by mail) after service of the objections. 13 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 14 § 636 (b)(1)(C). 15 objections within the specified time may waive the right to 16 appeal the District Court’s order. 17 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 18 19 20 IT IS SO ORDERED. 21 Dated: ie14hj January 3, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 15
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