(HC) Roots v. Valenzuela, No. 2:2014cv00030 - Document 20 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/4/14 RECOMMENDING that 16 MOTION to DISMISS be granted; and this case be closed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD ROOTS, 12 13 14 No. 2:14-cv-0030 KJM CKD P Petitioner, v. FINDINGS AND RECOMMENDATIONS ELVIN VALENZUELA, 15 Respondent. 16 17 Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas 18 corpus under 28 U.S.C. § 2254. He is serving a sentence of 18 years and 4 months imprisonment 19 for three firearm related offenses and making criminal threats. Respondent has filed a motion to 20 dismiss. 21 Respondent argues that petitioner has failed to exhaust state court remedies with respect to 22 all of his claims. The exhaustion of state court remedies is a prerequisite to the granting of a 23 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 24 requirement by providing the highest state court with a full and fair opportunity to consider all 25 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 26 After reviewing all of the material in the record, it appears petitioner has exhausted state 27 court remedies only with respect to the claim identified as “Ground three” in his petition for writ 28 of habeas corpus. In that claim, petitioner challenges evidence presented at his sentencing 1 1 hearing. Petitioner presented this claim to the California Supreme Court in a state petition for 2 writ of habeas corpus filed on August 16, 2013. Resp’t’s Lodged Doc. No. 10. The claim was 3 rejected on November 20, 2013. Resp’t’s Lodged Doc. No. 11. It does not appear petitioner has 4 presented either “Ground one” or “Ground two” to the California Supreme Court.1 Accordingly, 5 at this point, petitioner cannot obtain relief pursuant to “Ground one or “Ground two.” 6 As for the only claim where state court remedies have been exhausted, respondent argues 7 petitioner cannot obtain relief as to that claim because the applicable limitations period has been 8 violated. Title 28 U.S.C. § 2244(d)(1) provides: 9 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 – 10 11 (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; 12 13 (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; 14 15 (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 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 On September 8, 2011, petitioner filed a petition for review in the California Supreme 21 Court of the California Court of Appeal’s denial of petitioner’s appeal of his conviction and 22 sentence. Resp’t’s Lodged Doc. # 13. The petition for review was denied October 12, 2011. 23 Resp’t’s Lodged Doc. # 14. Petitioner’s conviction became final for purposes of § 2244(d)(1)(A) 24 on January 10, 2012 when time expired for petitioner to seek a writ of certiorari with respect to 25 1 26 27 28 In “Ground one,” petitioner asserts he was subjected to ineffective assistance of counsel in violation of the Sixth Amendment because trial counsel advised him not to testify. In his California Supreme Court petition for writ of habeas corpus, petitioner asserts he was subjected to ineffective assistance of counsel in several respects, but he does not present any claims related to petitioner not testifying. 2 1 the California Supreme Court’s denial of petitioner’s direct appeal request for review. See 2 Bowen v. Roe, 188 F.3d 1157, 1158 59 (9th Cir. 1999) (“We hold that the period of ‘direct 3 review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a 4 petition for a writ of certiorari from the United States Supreme Court, whether or not the 5 petitioner actually files such a petition.”). 6 On December 11, 2011 (before time expired for petitioner to file a petition for writ of 7 certiorari), petitioner filed a petition for writ of habeas corpus with the Superior Court of 8 Sacramento County.2 Resp’t’s Lodged Doc. No. 1. Title 28 U.S.C. § 2244(d)(2) provides that 9 “the time during which a properly filed application for State post-conviction or other collateral 10 review with respect to the pertinent judgment or claim is pending shall not be counted toward any 11 period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondent concedes that 12 petitioner is entitled to tolling of the applicable limitations period while his first state habeas 13 petition was pending. The petition was denied on February 3, 2012 (Resp’t’s Lodged Doc. No. 14 1), and the limitation period began running for the first time the next day. 15 Petitioner filed a second petition for writ of habeas corpus in the Superior Court of 16 Sacramento County on September 19, 2012 (Resp’t’s Lodged Doc. No. 4) which tolled the 17 applicable limitations period a second time. At that point, 228 days of the limitations period had 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 27 2 Documents are “filed” in courts by prisoners on the day they give their documents to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). 28 3 1 elapsed.3 The petition was denied October 16, 2012. Resp’t’s Lodgd Doc. No. 5. The limitations 2 period commenced a second time the next day and ran out on March 2, 2013 well before this 3 action was commenced in January of this year.4 4 Because there appear to be no claims upon which petitioner may proceed, the court will 5 recommend that petitioner’s application for writ of habeas corpus be dismissed, and this case be 6 closed. 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Respondent’s motion to dismiss (ECF No. 16) be granted; and 9 2. This case be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Respondent argues that petitioner is also entitled to tolling between April 10, and May 29, 2012 while a motion to amend petitioner’s first Superior Court of Sacramento County petition for writ of habeas corpus was pending. A motion to amend a petition which has already been denied is not, by itself, “[a]n application for State post-conviction or other collateral review.” A different conclusion might be appropriate had the Superior Court granted the motion and elected to proceed on an amended petition. However, the Superior Court denied the motion to amend because petitioner sought to bring additional claims. The Superior Court informed petitioner that the correct course of action was to commence a second habeas action, which petitioner did. So, to the extent the court could construe petitioner’s motion to amend as “[a]n application for State post-conviction or other collateral review,” petitioner would still not be entitled to tolling under 28 U.S.C. § 2244(d)(2) because it was not “properly filed” in the Superior Court. 4 After the limitations period expired, petitioner filed a third petition for writ of habeas corpus in the Superior Court of Sacramento County on May 6, 2013 (Resp’t’s Lodgd Doc. No. 6) and the petition was denied June 13, 2013 (Resp’t’s Lodgd Doc. No. 7). The Ninth Circuit has held that under certain circumstances, the limitations period applicable to § 2254 actions will be tolled during the intervals of time between pending Superior Court petitions. See Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012). However, because petitioner raised claims not raised in his first petition in his second petition, and then raised claims not raised in his second petition in his third petition, he is not entitled to interval tolling. See id. (Interval of time between pending petitions for collateral relief filed in the same court may be tolled if the subsequent petition is “limited to an elaboration of the facts relating to the claims in the first petition.”) 4 1 may address whether a certificate of appealability should issue in the event he files an appeal of 2 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 3 court must issue or deny a certificate of appealability when it enters a final order adverse to the 4 applicant). Any response to the objections shall be served and filed within fourteen days after 5 service of the objections. The parties are advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 7 F.2d 1153 (9th Cir. 1991). 8 Dated: June 4, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 1 root0030.mtd 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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