(HC) Harris v. Neuschmid, No. 2:2019cv01780 - Document 16 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 8/10/2020 RECOMMENDING respondent's 11 motion to dismiss be granted. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAYDE HOLLIS HARRIS, 12 Petitioner, 13 14 No. 2:19-CV-1780-KJM-DMC-P v. FINDINGS AND RECOMMENDATIONS ROBERT NEUSCHMID, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is respondent’s motion to 19 dismiss (ECF No. 11). 20 I. BACKGROUND 21 22 23 A. State Court Proceedings Petitioner Wayde Hollis Harris was convicted in San Joaquin County Superior 24 Court of inflicting corporal injury on a cohabitant, assault with a firearm, false imprisonment by 25 violence, ex-felon in possession of a firearm, possession of a firearm after being convicted of 26 inflicting corporal injury on a cohabitant, failure to appear on a felony charge after release on 27 bail, and two counts of criminal threats. See ECF No. 13, Lod. Doc. 1. On October 24, 2008, 28 petitioner was sentenced to a determinate state prison term of twenty-two years. Id. On June 17, 1 1 2010, the California Court of Appeal stayed petitioner’s sentence for one criminal threat and 2 affirmed the judgement as modified. See ECF No. 13, Lod. Doc. 2. The California Supreme Court 3 denied review on September 1, 2010. See ECF No. 13, Lod. Doc. 4. 4 Petitioner filed eleven pro se state post-conviction collateral actions, all of which 5 were petitions for writs of habeas corpus. 6 First Action California Court of Appeal. Filed October 4, 2009. See ECF No. 13, Lod. Doc. 5. Denied October 16, 2009. See ECF No. 13, Lod. Doc. 6. Second Action San Joaquin County Superior Court. Filed October 28, 2009. See ECF No. 13, Lod. Doc. 7. Denied December 18, 2009. See ECF No. 13, Lod. Doc. 8. Third Action California Court of Appeal. Filed January 4, 2010. See ECF No. 13, Lod. Doc. 9. Denied June 17, 2010. See ECF No. 13, Lod. Doc. 10. Fourth Action California Supreme Court. Filed November 23, 2011. See ECF No. 13, Lod. Doc. 11. Denied May 23, 2012. See id. Fifth Action California Supreme Court. Filed November 5, 2015. See ECF No. 13, Lod. Doc. 14. Denied February 17, 2017. See id. Sixth Action San Joaquin County Superior Court. Filed November 30, 2015. See ECF No. 13, Lod. Doc. 17. Denied January 6, 2016. See id. Seventh Action San Joaquin County Superior Court. Filed March 7, 2016. See ECF No. 13, Lod. Doc. 18. Denied May 26, 2016. See ECF No. 13, Lod. Doc. 19. Eighth Action San Joaquin County Superior Court. Filed July 4th, 2017. See ECF No. 13, Lod. Doc. 20. Denied August 3, 2017. See ECF No. 13, Lod. Doc. 21. Ninth Action San Joaquin County Superior Court. Filed September 28, 2017. See ECF No. 13, Lod. Doc. 22. Denied October 27, 2017. See ECF No. 13, Lod. Doc. 23. Tenth Action San Joaquin County Superior Court. Filed January 23, 2018. See ECF No. 13, Lod. Doc. 24. Denied March 19, 2018. See ECF No. 13, Lod. Doc. 25. Eleventh Action California Supreme Court. Filed December 21, 2018. See ECF No. 13, Lod. Doc. 26. Denied May 15, 2019. See ECF No. 13, Lod. Doc. 27. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// 2 1 B. 2 Prior Federal Habeas Corpus Action Petitioner filed a prior federal habeas corpus action challenging the same 3 conviction and sentence, Harris v. Uribe, E. Dist. Cal. Case No. 2:12-CV-01502-AC (Harris I). In 4 Harris I, petitioner argued: (1) his trial counsel provided ineffective assistance by failing to offer 5 evidence of the victim’s bad conduct and failing to pursue matters that would have presented 6 further exculpatory evidence in petitioner’s favor, (2) his appellate counsel provided ineffective 7 assistance by refusing to raise issues with altered transcripts, (3) petitioner’s retrial on the same 8 grounds as his previous trial violated his Fifth Amendment right to be free of double jeopardy, 9 (4) the court violated petitioner’s right to a fair trial by erroneously admitting evidence of 10 previous uncharged violence, (5) there was insufficient evidence to support petitioner’s 11 conviction of a criminal threat against Lois Harris, and (6) his request for a Marsden hearing was 12 wrongfully denied at sentencing. The petition was denied on the basis of being untimely on 13 October 18, 2016. The Ninth Circuit declined to grant a certificate of appealability on August 2, 14 2017. 15 C. 16 Current Federal Habeas Corpus Action Petitioner filed his current federal petition on August 28, 2019. See ECF No. 1. 17 Petitioner raises a single ground for relief. Specifically, petitioner now claims his state court 18 criminal conviction is void because the case was initiated by way of a felony complaint instead of 19 an indictment or information. Id. at 19-41. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 II. DISCUSSION 2 Respondent argues that the current petition must be dismissed for lack of 3 jurisdiction because it is a second or successive petition that was filed without obtaining 4 authorization from the Ninth Circuit Court of Appeals. Respondent also argues that, should the 5 court conclude it has jurisdiction over the case, the current petition must be dismissed because it 6 is untimely. 7 8 9 A. Second or Successive Petition Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.” 10 Under § 2244(b)(2), “[a] claim presented in a second or successive habeas corpus application . . . 11 that was not presented in a prior application shall be dismissed. . . .” unless one of two 12 circumstances exist. Either the newly raised claim must rely on a new rule of constitutional law, 13 or the factual predicate of the new claim could not have been discovered earlier through the 14 exercise of due diligence and the new claim, if proven, establishes actual innocence. See id. 15 Before a second or successive petition can be filed in the district court, however, the petitioner 16 must first obtain leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3). In the absence of 17 proper authorization from the Court of Appeals, the district court lacks jurisdiction to consider a 18 second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d 1270 (9th 19 Cir. 2001) (per curiam). 20 A second petition can only be successive of a prior petition which has been 21 decided on the merits. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). A decision on the 22 merits occurs if the district court either considers and rejects the claims or determines that the 23 claims will not be considered by a federal court. See Howard v. Lewis, 905 F.2d 1318, 1322-23 24 (9th Cir. 1990). The dismissal of a petition as untimely, constitutes a decision on the merits 25 because such a dismissal is a determination that the claims will not be considered. See McNabb 26 v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009). Likewise, the denial of a petition on 27 procedural default grounds is also a determination on the merits. See Henderson v. Lampert, 28 396 F.3d 1049, 1053 (9th Cir. 2005) (citing Howard, 905 F.2d at 1322-23, and stating that the 4 1 denial of a petition on procedural default grounds is a determination that the claims will not be 2 considered by the federal court). 3 Here, petitioner’s previous habeas petition, Harris I, was dismissed as untimely 4 and, as such, was decided on the merits. The current federal habeas petition does not raise the 5 same claims and, thus, falls under § 2244(b)(2). As such, the petitioner must make the required 6 showing that the new claims rely on a new rule of constitutional law or the factual predicate of 7 claims could not have been discovered earlier with due diligence. The showing must be made at 8 the Ninth Circuit Court of Appeals to obtain authorization to file a second of successive petition 9 in the district court. Petitioner has not demonstrated that he obtained prior approval from the 10 Ninth Circuit. Therefore, the court lacks jurisdiction to hear the current second or successive 11 federal habeas petition. Petitioner’s present federal habeas claim must be dismissed. Petitioner’s argument that this Court has the discretion to decide whether to hear 12 13 second or successive petitions is erroneous. District Courts unequivocally lack the jurisdiction 14 to consider second or successive petitions in the absence of authorization from the Ninth Circuit 15 Court of Appeals See Cooper, 274 F.3d at 1270. Petitioner’s argument that his previous federal 16 court judgment was not on the merits is also incorrect. A dismissal of a petition due to the 17 petition being untimely is a judgment on the merits See McNabb, 576 F.3d at 1029-30. 18 B. 19 Statute of Limitations Federal habeas corpus petitions must be filed within one year from the later of: 20 (1) the date the state court judgment became final; (2) the date on which an impediment to filing 21 created by state action is removed; (3) the date on which a constitutional right is newly- 22 recognized and made retroactive on collateral review; or (4) the date on which the factual 23 predicate of the claim could have been discovered through the exercise of due diligence. See 28 24 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court 25 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 26 review. See 28 U.S.C. § 2244(d)(1). 27 /// 28 /// 5 1 Where a petition for review by the California Supreme Court is filed and no 2 petition for certiorari is filed in the United States Supreme Court, the one-year limitations period 3 begins running the day after expiration of the 90-day time within which to seek review by the 4 United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 5 Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year 6 limitations period begins to run the day after certiorari is denied or the Court issued a merits 7 decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for 8 review by the California Supreme Court is filed, the conviction becomes final 40 days following 9 the Court of Appeal’s decision, and the limitations period begins running the following day. See 10 Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the 11 conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the 12 limitations period begins running the following day. See Cal. Rule of Court 8.308(a). If the 13 conviction became final before April 24, 1996 – the effective date of the statute of limitations – 14 the one-year period begins to run the day after the effective date, or April 25, 1996. See Miles v. 15 Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). 16 The limitations period is tolled, however, for the time a properly filed application 17 for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be 18 “properly filed,” the application must be authorized by, and in compliance with, state law. See 19 Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. 20 DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a 21 state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions 22 and the failure to comply with those time limits precludes a finding that the state petition is 23 properly filed). A state court application for post-conviction relief is “pending” during all the 24 time the petitioner is attempting, through proper use of state court procedures, to present his 25 claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered 26 “pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549 27 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari 28 petition to the Supreme Court was pending). Where the petitioner unreasonably delays between 6 1 state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 2 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as 3 untimely, the federal court must independently determine whether there was undue delay. See id. 4 at 226-27. 5 There is no tolling for the interval of time between post-conviction applications 6 where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 7 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no 8 tolling for the period between different sets of post-conviction applications. See Biggs v. 9 Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct 10 review and the filing of a state post-conviction application does not toll the limitations 11 period. See Nino, 1983 F.3d at 1006-07. 12 1. The Limitations Period Begins 13 Petitioner did not seek certiorari in the United States Supreme Court after the 14 California Supreme Court denied his petition for review on September 1, 2010. Thus, the 15 one-year limitations period commenced on December 1, 2010—the day after the ninety-day 16 period to file a petition for writ of certiorari with United States Supreme Court expired. See 17 Patterson, 251 F.3d at 1246. Absent tolling, petitioner’s federal habeas complaint was due 18 by December 1, 2011. 19 20 21 2. Tolling a. Petitioner’s First, Second, and Third State Petitions As respondent correctly notes, petitioner is not entitled to tolling for his first, 22 second, or third petitions because they were all filed before petitioner’s conviction became 23 final. Petitioner filed his first state action on October 4, 2009, and was denied relief on 24 October 16, 2009. See ECF No. 13, Lod. Doc. 5; ECF No. 13, Lod. Doc. 6. Petitioner filed 25 his second state action on October 28, 2009, and was denied relief on December 18, 2009. 26 See ECF No. 13, Lod. Doc. 7; ECF Lod. Doc. 8. Petitioner filed his third state action on 27 January 4, 2010, and was denied relief on June 17, 2010. See ECF No. 13, Lod. Doc. 9; 28 ECF No. 13, Lod. Doc. 10. All these actions occurred before direct review became final on 7 1 September 1, 2010. See ECF No. 13, Lod. Doc. 4. Collateral actions filed before the 2 limitations period commences have no tolling consequences. Waldrip v. Hall, 548 F.3d 729, 3 735 (9th Cir. 2008). Therefore, the time during which this action was pending had no effect 4 on the statute of limitations because the limitations period had not yet commenced. 5 b. Petitioner’s Untimely Fourth State Petition 6 Citing Evans v. Chavis, 546 U.S. 189, 201 (2006), respondent argues that 7 petitioner unreasonably delayed seeking review of the California Court of Appeal’s third 8 denial of his petition by waiting 523 days after the denial to re-file his petition. Respondent 9 contends that because petitioner unreasonably delayed seeking review, his petition was not 10 properly pending under U.S.C. § 2244(d)(2). Citing Pace, 544 U.S. at 414, respondent also 11 argues that the limitations period continued to run both (1) on the days before the untimely- 12 under-state-law filing and (2) on the days that the untimely-under-state-law petition was on 13 file. 14 Petitioner does not attempt to explain his 523-day delay in filing. Instead, 15 petitioner argues that his claim is not subject to the statute of limitations because the San 16 Joaquin County Superior Court did not have jurisdiction over his original criminal 17 proceeding. Petitioner argues that because the state court did not have jurisdiction over his 18 original criminal proceeding, the judgment in his case is void, and void judgments can be 19 challenged at any time. Petitioner also contends that the statute of limitations only applies 20 when the state would be prejudiced by petitioner’s delay in filing. Petitioner argues the state 21 would not be prejudiced in this matter because they had access to all the relevant documents 22 because the case raises only legal questions, not factual ones. Finally, petitioner argues that 23 he should be exempt from statute of limitations requirements due to a fundamental 24 miscarriage of justice. 25 The Court finds that petitioner’s filing of his fourth state court post- 26 conviction action was untimely due to an unreasonable 523-day delay and, therefore, 27 petitioner is not entitled to tolling for the period between the denial of his third action and 28 filing of his fourth action. Petitioner also is not entitled to tolling for the period between the 8 1 2 filing of his fourth action and the denial of his fourth action due to the untimely file. Petitioner’s argument is flawed in four respects. First, petitioner argues that 3 his claim is not barred because the Ninth Circuit held that statute of limitations begins 4 running on the date on which a petitioner discovers the legal basis of the claim. See ECF 5 No. 1, p.4. The Ninth Circuit’s ruling referenced U.S.C. § 2244(b)(2)(a), which states that 6 the applicant must show that they could not have discovered the legal basis of the claim 7 because it relies on a new rule of constitutional law that was previously unavailable. See 8 U.S.C § 2244(b)(2)(a). Petitioner offers no evidence that his argument relies on a novel 9 ruling of constitutional law. Rather, petitioner argues that he should be granted habeas relief 10 because the San Joaquin court lacked jurisdiction over his initial criminal proceeding. The 11 argument that a lack of jurisdiction renders any court proceedings void is far from new. See 12 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Insofar as petitioner 13 claims that the misuse of a felony complaint is a new constitutional argument, petitioner is 14 mistaken as other petitioners have raised similar challenges for decades. See e.g., Spalla v. 15 Foltz, 788 F.2d 400 (6th Cir. 1986); Hogan v. Ward, 998 F. Supp. 290 (W. D. N.Y. 1998); 16 LoPizzo v. LeFevre, 863 F. Supp. 96 (E.D.N.Y. 1994); Sutton v. Waddington, 384 Fed. 17 Appx. 569 (9th Cir. 2010). 18 Second, petitioner’s claim that the judgment in his case is void is erroneous. 19 Petitioner is correct that superior courts initially lack jurisdiction over felony complaints. 20 However, superior courts gain jurisdiction after a filing of information. See People v. Leonard, 21 228 Cal. App. 4th 465, 482 (2014). Here, petitioner went before a judge who found sufficient 22 cause for petitioner’s guilt and thus petitioner’s felony complaint became an information. See 23 ECF No. 1, pp. 61-9. Petitioner’s assertion that only private citizens can file felony charges is 24 incorrect. In fact, private citizens lack the authority to bring criminal charges. See Linda R.S. v. 25 Richard D., 410 U.S. 614, 619 (1973). Petitioner’s reliance on Attorney General Lockyer’s 26 statement that “the government may not even be involved in the preparation, investigation, and 27 filing of a felony complaint” is misguided. See ECF No. 11, p. 3 (quoting People v. Viray, 134 28 Cal. App. 4th 1186, 1200 (2005)). The Viray court discredited Attorney General Lockyer’s 9 1 statement on the basis that established caselaw directly contradicted his claim. See People v. 2 Viray, 134 Cal App. 4th at 1201-02. Thus, petitioner cannot rely on this claim to support his case. 3 Further, Attorney General Lockyer’s use of the term “may” meant he believed there could be 4 situations where the government was not involved in the preparation, investigation, and filing of a 5 felony complaint. Attorney General Lockyer never stated that the government lacked the 6 authority to be involved in the preparation, investigation, and filing of a felony. 7 Third, petitioner incorrectly states the statute of limitations only applies when 8 the state would be prejudiced by petitioner’s delay. Petitioner’s assertion is incorrect in two 9 respects. First, petitioner once again cites an outdated version of U.S.C. § 2254. § 2554 has 10 not contained Rule 9(a) since 2004. See U.S.C.A § 2254 (West 2020). Second, the very rule 11 petitioner cites states that delays that total more than five years automatically lead to a 12 presumption of prejudice. Petitioner’s delay is seven years, and he provides no evidence that 13 the state was not prejudiced outside of a conclusory statement that his case is a matter of law 14 so the state has all the documents it needs. 15 Fourth, insofar as petitioner alleges that he is entitled to an exception to the statute 16 of limitations due to a fundamental miscarriage of justice, he is mistaken. The miscarriage of 17 justice exception is limited to “those extraordinary cases where the petitioner asserts his 18 innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” 19 Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir., 2008). Without any new evidence of innocence, 20 the existence of even a meritorious constitutional violation cannot establish that a miscarriage of 21 justice exception would allow an otherwise barred claim to succeed. See Schlup v. Delo, 513 U.S. 22 298, 316 (1995). Here, petitioner does not introduce any new evidence of his innocence and his 23 argument centers around the alleged procedural violations that occurred in his criminal case. 24 Thus, he is not entitled to a statute of limitations exception on the grounds of a fundamental 25 miscarriage of justice. 26 /// 27 /// 28 /// 10 1 Petitioner does not provide any explanation for his delay besides his argument that 2 statutory tolling does not apply to his case, which, as previously discussed, is meritless. As 3 demonstrated by recent cases, the Ninth Circuit has made it common practice to hold firm to a 4 thirty- or sixty- day period for filing subsequent state actions absent a showing of a proper excuse 5 for delay. See Livermore v. Watson, 556 F. Supp. 2d 1112, 1118-20 (E.D. Cal. 2008) (holding 6 that the four-and-a-half-month delay in Saffold was not deemed to be reasonable, and that an 7 interval of seventy-eight days between filings was not entitled to statutory tolling since it was not 8 timely); Bennett v. Felker, 635 F. Supp. 2d 1122, 1124-27 (C.D. Cal. 2009) (holding that ninety- 9 three days of unexplained delay in filing petition was “…substantially longer than the thirty or 10 sixty days contemplated by the Supreme Court in Evans, and is unjustified when Petitioner's third 11 petition was nearly identical to the one he filed in the lower court.” (italic removed). Petitioner’s 12 523-day delay extends far beyond this time period and thus was unreasonable. 13 3. The Limitations Period Ends 14 As indicated above, the California Supreme Court denied petitioner’s fourth state 15 post-conviction action on May 23, 2012, which was 174 days after petitioner’s limitations period 16 expired on December 1, 2011. Thus, it is irrelevant whether petitioner was entitled to statutory 17 tolling for his fifth, six, seventh, eighth, ninth, tenth, and eleventh state post-conviction actions 18 because the one-year limitations period had already expired by the time petitioner filed these 19 actions. Petitioner’s previous federal petition and his application for a certificate of appealability 20 in the Ninth Circuit also cannot extend the statute of limitations. See Duncan v. Walker, 533 U.S. 21 167, 181-2 (2001) (holding that application for federal habeas review is not an application for 22 state-post conviction or other collateral review within meaning of the tolling provision of the 23 Antiterrorism and Effective Death Penalty Act). 24 /// 25 /// 26 /// 27 /// 28 /// 11 1 2 3 III. CONCLUSION Based on the foregoing, the undersigned recommends that respondent’s motion to dismiss (ECF No. 11) be granted. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 363(b)(1). Within 14 days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court. Responses to objections shall be filed within 14 days after service of 8 objections. Failure to file objections within the specified time may waive the right to appeal. See 9 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 13 Dated: August 10, 2020 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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