(HC) Beavers v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS J. BEAVERS, No. 2:19-cv-00353 TLN GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, Warden, 15 Respondent. 16 17 18 Introduction and Summary 19 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c). 22 The petition in this case, as colored by the underlying state court proceedings, is unclearly 23 written in terms of the particular state case under attack here, but there is no mistaking the 24 overarching claim. Petitioner contests the use of a prior Placer County conviction, a conviction to 25 which petitioner entered a plea, to enhance the sentence for which petitioner is currently 26 incarcerated (the Sacramento County case). Respondent has made a motion to dismiss in which 27 alternative positions are argued in terms of whether the Placer County conviction is the conviction directly at issue here, or whether the Sacramento County conviction is the pertinent 28 1 conviction, albeit with the attempt to have the sentence in that case overturned because of the use 2 of the prior Placer County conviction. 3 The undersigned will proceed in a likewise fashion although it is most probably the latter 4 conviction petitioner ultimately places at issue in this habeas action. For the reasons set forth 5 herein, to the extent the Placer County conviction is the conviction under direct review, petitioner 6 is no longer in custody for that conviction, and hence the court has no jurisdiction to review it.1 7 To the extent that the Sacramento County conviction/sentence is the case for which habeas 8 review is sought, albeit on the grounds that the Placer County conviction was utilized unfairly, the 9 court finds that the action is barred by the AEDPA limitations statute. Furthermore, to the extent 10 that petitioner’s attacks use of the prior Placer County conviction in the Sacramento County case, 11 the claim is non-cognizable as a matter of law. 12 Factual Background 13 The Placer County Conviction 14 In 2010, petitioner pled guilty to Participation in a Criminal Street Gang, Felon in 15 Possession of a Firearm and Transporting Marijuana. ECF No. 11-1 (showing sentencing hearing 16 of June 15, 2010). This was Placer County Case No. 62-090968/F4511, hereinafter the “Placer 17 County conviction.” Petitioner did not appeal this conviction. 18 According to respondent’s lodging, petitioner was paroled (three-year parole) on 19 September 3, 2011. ECF No. 11-17. During that parole period, 112 days were apparently tolled 20 because petitioner was “at large.” The form, although difficult to interpret for the 21 administratively unschooled, indicates that with the addition of 91 days revocation time, 22 petitioner was discharged from parole on March 24, 2015. In any event, parole in this case could 23 not have extended past September 3, 2011 plus 112 days—January 2, 2016, extending parole with 24 every possible extension. See Cal. Penal Code §§ 3000 and 3064 limiting any three-year parole 25 //// 26 1 Respondent is correct that the Federal Habeas Rules, Rule 2(e) only permits the attack of one 27 conviction per petition. However, because the court has no jurisdiction over a challenge to his first conviction, and because it is most probable that only the second conviction is at issue here, the court will 28 proceed in one petition to dispose of both convictions. 1 period to a maximum of four years plus added time for being “at large.”2 It is not entirely clear 2 2 The pertinent statutory provisions are as follows (emphasis added): 3 Cal Penal Code § 3000. Legislative findings, declaration and intent; 4 parole; discharge from custody; meetings with inmates; reconsideration of length and conditions; return to custody: 5 (b) Notwithstanding any provision to the contrary in Article 3 6 (commencing with Section 3040) of this chapter, the following shall apply to any inmate subject to Section 3000.08: 7 (1) In the case of any inmate sentenced under Section 1168 for a crime 8 committed prior to July 1, 2013, the period of parole shall not exceed five years in the case of an inmate imprisoned for any offense other than first 9 or second degree murder for which the inmate has received a life sentence, and shall not exceed three years in the case of any other inmate, 10 unless in either case the Board of Parole Hearings for good cause waives parole and discharges the inmate from custody of the department. This 11 subdivision shall also be applicable to inmates who committed crimes prior to July 1, 1977, to the extent specified in Section 1170.2. In the case 12 of any inmate sentenced under Section 1168 for a crime committed on or after July 1, 2013, the period of parole shall not exceed five years in the 13 case of an inmate imprisoned for any offense other than first or second degree murder for which the inmate has received a life sentence, and shall 14 not exceed three years in the case of any other inmate, unless in either case the department for good cause waives parole and discharges the 15 inmate from custody of the department. 16 (2)(A) For a crime committed prior to July 1, 2013, at the expiration of a term of imprisonment of one year and one day, or a term of imprisonment 17 imposed pursuant to Section 1170 or at the expiration of a term reduced pursuant to Section 2931 or 2933, if applicable, the inmate shall be 18 released on parole for a period not exceeding three years, except that any inmate sentenced for an offense specified in paragraph (3), (4), (5), (6), 19 (11), or (18) of subdivision (c) of Section 667.5 shall be released on parole for a period not exceeding 10 years, unless a longer period of 20 parole is specified in Section 3000.1. 21 *** 22 (6) Upon successful completion of parole, or at the end of the maximum statutory period of parole specified for the inmate under paragraph (1), 23 (2), (3), or (4), as the case may be, whichever is earlier, the inmate shall be discharged from custody. The date of the maximum statutory period of 24 parole under this subdivision and paragraphs (1), (2), (3), and (4) shall be computed from the date of initial parole and shall be a period 25 chronologically determined. Time during which parole is suspended because the prisoner has absconded or has been returned to custody as a 26 parole violator shall not be credited toward any period of parole unless the prisoner is found not guilty of the parole violation. However, the period of 27 parole is subject to the following: 28 (A) Except as provided in Section 3064, in no case may a prisoner subject 1 whether petitioner’s parole period could have been extended so far, but in an abundance of 2 caution, the undersigned has included the latest period in the computation. This federal petition, 3 ECF No. 1, was not filed until February 28, 2019, years after any conceivable parole period 4 expired. Petitioner was not “in custody” for the Placer County conviction when he filed the 5 federal petition. 6 The Sacramento County Conviction 7 The factual scenario for this conviction is best set forth in the appellate opinion which 8 includes an interplay between the Placer County conviction and the Sacramento County 9 conviction: 10 Defendant Marcus Jamal Beavers has a long criminal history, both as a juvenile and as an adult. A prior conviction in 2010 for actively 11 participating in a criminal street gang is at the heart of the present dispute. (Pen. Code, § 186.22, subd. (a); unless otherwise set forth, 12 statutory references that follow are to the Penal Code. 13 In this case, defendant was convicted of second degree robbery, assault with a firearm, and possession of hydromorphone. (§§ 211 14 & 245, subd. (a)(2); Health & Saf.Code, § 11350, subd. (a).) Given defendant’s 2010 criminal street gang conviction, which was a 15 strike which was alleged and which the court found true, the court sentenced defendant to 16 years four months with a prison prior 16 under California’s three strikes law. (§§ 667, 667.5 & 1170.12.) 17 Shortly before defendant’s trial, our Supreme Court decided People v. Rodriguez (2012) 55 Cal.4th 1125, 1131–1132 (Rodriguez), 18 which held that subdivision (a) of section 186.22 requires proof that a defendant promoted, furthered, or assisted felonious conduct by 19 members of the gang, and that this element is not satisfied when a defendant acts alone in committing a felony. Based on Rodriguez, 20 defendant argues he should not have been sentenced as a second striker because the underlying 2010 prior conviction was not a 21 strike since no evidence showed he acted with at least one other 22 to three years on parole be retained under parole supervision or in 23 custody for a period longer than four years from the date of his or her initial parole. 24 Cal. Penal Code § 3064. Suspension or revocation; parolee an escapee 25 until returned to custody; exclusion of escape time from term: 26 From and after the suspension or revocation of the parole of any prisoner and until his return to custody he is an escapee and fugitive from justice 27 and no part of the time during which he is an escapee and fugitive from justice shall be part of his term. 28 1 gang member. 2 Because defendant pleaded guilty to actively participating in a criminal street gang under section 186.22, subdivision (a), he 3 necessarily admitted every element of that offense, including that he promoted, furthered, or assisted felonious conduct by members 4 of the gang. We therefore affirm the judgment as defendant’s prior conviction qualified as a serious felony for purposes of the three 5 strikes law. 6 People v. Beavers, No. C073720, 2015 WL 4111536, at *1 (Cal. Ct. App. July 8, 2015). 7 Petitioner did not seek direct review with the California Supreme Court. 3 8 A series of state habeas petitions were undertaken, the first one was filed in Placer County 9 Superior Court on April 18, 2016, which was then transferred to Sacramento Superior Court on 10 May 10, 2016. See ECF Nos. 11-5, 11-6. The undersigned will utilize April 18, 2016 as the date 11 of filing because it makes no difference in the outcome of the limitations issue.4 This petition 12 was decided in Sacramento County Superior Court on June 7, 2016. ECF No. 11-14. 13 For purposes of this limitations analysis, which applies only to the Sacramento County 14 conviction, and because it is unclear in the state habeas petitions what judgment petitioner desires 15 to attack, and giving petitioner the benefit of every doubt, all of the state petitions will be 16 assumed to attack the Sacramento County conviction. 17 The next state petition was not filed until April 16, 2018 in Placer County. This is the 18 petition which respondent describes as one that cannot be found. ECF No. 9 at 8, fn.5. However, 19 it was clearly decided on the merits on May 23, 2018. ECF No. 11-8. The decision expressly 20 found that the petition had been filed on April 16, 2018. 21 3 In an event which has no bearing on the issues herein, petitioner was resentenced on Count 3 of 22 the judgment, the felony conviction having been reduced to a misdemeanor. Judgment was re-entered on December 16, 2014. See ECF No. 11-4. No appeal was taken from this re-entry of judgment, as the re- 23 entry of judgment was entirely favorable to petitioner. The direct appeal on the merits of petitioner’s Sacramento conviction proceeded and was not decided until July 8, 2015. The resentencing judgment was 24 final long before the appeal was decided, and its significance drops from the case. 25 4 Respondent makes a strong argument that a state habeas petition filed in the wrong court does not count as one “properly filed” for limitations purposes. See ECF No. 9 at 10-11, fn.7. There is simply 26 no need to finally decide that issue. Moreover, as respondent argues, the state petitions are not crystal clear in terms of which conviction was being attacked. If the April 16 petition did relate to the Placer 27 County conviction, it was filed in the correct court (albeit very late). For the limitations issue here, petitioner will be given the benefit of every doubt. 28 1 Next, on November 5, 2018, petitioner filed in the California Court of Appeal. ECF No. 2 11-9 (petitioner confusingly labels his petition as in the Court of Appeal located in Sacramento 3 County). This petition was quickly denied by the Court of Appeal on November 8, 2018. 4 Petitioner followed up on this denial with a petition filed in the California Supreme Court on 5 December 12, 2018). ECF No. 11-11 (The petition is labeled as located in San Francisco 6 County). The California Supreme Court denied the petition on April 24, 2019. ECF No. 11-12. 7 Finally, prior to filing in the California Supreme Court, petitioner again filed a habeas 8 petition in Sacramento County on July 27, 2018. ECF No. 11-15. This petition was denied on 9 October 9, 2018. ECF No. 11-16.5 10 Discussion 11 The Placer County Conviction 12 “Section 2254(a)'s ‘in custody’ requirement is jurisdictional and therefore ‘it is the first 13 question we must consider.’ See Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998) 14 (stating the same as to 28 U.S.C. § 2241's ‘in custody’ requirement).” Bailey v. Hill, 599 F.3d 15 976, 978 (9th Cir. 2010). “Custody” means more than the fact of physical incarceration. Id. at 16 979. A serious restraint on petitioner’s liberty, such as probation or parole status, will suffice to 17 render a petitioner “in custody.” Maleng v. Cook, 490 U.S. 488, 492 (1989). However, the mere 18 fact that a conviction has been used to enhance a sentence on a successor crime does not mean 19 one is “in custody” for the conviction enhancing the sentence. Id. 20 If petitioner had not completely served the mandatory parole term, no matter the date of its 21 imposition, and regardless of whether he was serving a sentence on an unrelated conviction, he 22 would be “in custody” for purposes of attacking the conviction which led to the imposition of 23 parole; on the other hand, he is not in custody due to a parole term once parole has been 24 discharged. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999); Mazariego v. California 25 Dep't of Corr. & Rehab., No. CV 07-2877-DDP (PLA), 2008 WL 2491652 (C.D. Cal. June 19, 26 2008); Murguia v. Martel, No. CV 09-3054-ODW(E), 2009 WL 4980282 (C.D. Cal. Dec. 16, 27 5 The decision appears to have been filed on October 9, 2018, but it was not docketed until 28 October12, 2018. This discrepancy does not impact this matter. 1 2009); Starr v. California, No. 2:12-CV-0083 KJN P, 2013 WL 1402963 (E.D. Cal. Apr. 5, 2 2013); Collins v. Beard, No. CV-14-3916-GW (JPR), 2015 WL 11367932 (C.D. Cal. Mar. 30, 3 2015). The record in this case demonstrates that petitioner’s parole term for the Placer County 4 conviction was discharged by operation of law possibly on March 24, 2015, but in no event later 5 than January 2, 2016. 6 Petitioner has the burden of establishing the court’s subject matter jurisdiction. See 7 generally Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 8 (9th Cir. 1989). “A plaintiff, suing in a federal court, must show in his pleading, affirmatively and 9 distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, 10 the court, on having the defect called to its attention or on discovering the same, must dismiss the 11 case, unless the defect be corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459, 12 (1926). In no way has petitioner controverted the demonstrated fact that he was not “in custody” 13 for purposes of the Placer County conviction when he filed the federal petition. To the extent that 14 this federal petition attempts to directly attack the Placer County conviction, it should be 15 dismissed for lack of jurisdiction. 16 The Sacramento County Conviction 17 There is no doubt that petitioner is “in custody” for the Sacramento County conviction; it 18 is also without doubt that that this federal petition is barred by the AEDPA limitations statute no 19 matter what aspect of the Sacramento County conviction is actually at issue. 20 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 21 of 1996 (hereinafter “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year 22 statute of limitations for federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1) provides, in 23 pertinent part: 24 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 25 a State court. The limitation period shall run from the latest of– 26 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking 27 such review; 28 //// 1 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 2 the United States is removed, if the applicant was prevented from filing by such State action; 3 (C) the date on which the constitutional right asserted was initially 4 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable 5 to cases on collateral review; 6 (D) or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 7 diligence. 8 Only subsection (A) has applicability here. With no petition for review filed with the 9 California Supreme Court, petitioner’s conviction became final for purposes of AEDPA forty 10 days after the Court of Appeal’s decision. See 28 U.S.C. § 2244(d)(1)(A); Cal. Rules of Court 11 8.264(b)(1) (Court of Appeals decision is final 30 days after filing); Cal. Rules of Court 12 8.500(e)(1) (Petition for review with the California Supreme Court must be served and filed 10 13 days after the Court of Appeal’s decision is final). Accordingly, the statute of limitations pursuant 14 to 28 U.S.C. § 2244(d)(1)(A) commenced the following day. See Patterson v. Stewart, 251 F.3d 15 1243, 1244 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). Petitioner’s Sacramento conviction 16 became final 40 days after the appellate decision was filed on July 8, 2015. 6 Forty days later is 17 August 17, 2015. The AEDPA limitations statute began running the next day—August 18, 2015. 18 Petitioner had until August 18, 2016, that is until one year after finality of conviction, to file a 19 timely federal petition --absent applicable tolling. This instant action filed February 28, 2019 is 20 barred as untimely unless petitioner is entitled to statutory or equitable tolling. 21 Statutory tolling is applicable here. However, tolling did not commence until the April 22 18, 2016 state habeas petition was filed. Absent “gap tolling” occasioned by the filing of further 23 habeas petitions, the limitations period recommenced with the filing of the first state habeas 24 25 6 The undersigned disagrees with respondent that the resentencing of petitioner, as described above, and which pre-dated the appellate decision, makes any difference in the context of this case. While 26 a remand from the appellate court to resentence may make a resentencing significant from an AEDPA finality viewpoint, petitioner’s resentencing occurred entirely within the confines of the appellate process, 27 had nothing to do with the appellate process, and was entirely subsumed within it. The finality of the appellate process which occurred much later than the resentencing judgment is the finality date for 28 AEDPA purposes. 1 decision on the merits—June 7, 2016. Thus, 245 days of the AEDPA limitations period expired 2 up to the first statutory tolling, and petitioner had only 120 days left in which to file a federal 3 petition. 4 The next state habeas petition—April 16, 2018—was filed nearly two years after the 5 decision of the first state habeas petition. In no way can this nearly two-year period be termed a 6 reasonable gap between habeas petitions, even if another duplicative Superior Court habeas filing 7 could toll anything. The Supreme Court has held that for California gap tolling purposes, a 30-60 8 days gap between denial and filing in the next higher court are presumptively reasonable. 9 A prisoner may also be entitled to gap tolling for the period of time between an adverse ruling in a state habeas action and the 10 commencement of a new habeas action in a higher state court. To qualify for gap tolling, the time between a denial of habeas relief in 11 a lower court and a subsequent state challenge must be “reasonable.” Evans v. Chavis, 546 U.S. 189, 192 (2006). A filing 12 delay of “substantially longer than [ ] 30 to 60 days” without justification will prevent a California prisoner from qualifying for 13 gap tolling of the intervening period under AEDPA. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) 14 15 Harper v. Grounds, No. CV 15-8236 (VAP (MRW), 2016 WL 1714404, at *2 (C.D. Cal. Mar. 15, 16 2016). 17 And the courts are reluctant to expand what the Supreme Court has said was 18 presumptively reasonable: 19 Ever since Evans, the Ninth Circuit Court of Appeals has continued to whittle down the length of delay deemed “reasonable.” Compare 20 Banjo v. Ayers, 614 F.3d 964, 971 (9th Cir. 2010) (finding that Banjo’s delay of 146 days between the first and second petitions 21 filed in the superior court was unreasonable); and Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (finding that delays 22 of 101 and 115 days between filings were unreasonable and therefore not entitled to interval tolling); with Velasquez v. 23 Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (holding that interval delays of 81 days and 92 days between filings were unreasonable); 24 and Livermore v. Sandor, 2012 WL 2513951, *1 (9th Cir. 2012) (unpublished) (finding that a seventy-six day delay was 25 unreasonable and therefore not entitled to gap tolling). Applying this precedent to the case at bar, it is clear that petitioner is not 26 entitled to gap tolling for the 91 day gap between the California Court of Appeal’s denial of habeas relief and the filing date of his 27 petition in the California Supreme Court. Especially in light of Velasquez, 639 F.3d at 968 (finding interval delays of 81 days and 28 1 92 to be unreasonable), the interval at issue here cannot be deemed reasonable. 2 3 Robinson v. Lewis, No. 2:13-cv-0604 WBS AC P, 2013 WL 5970421, at *4 (E.D. Cal. Nov. 4, 4 2013). 5 Accordingly, as no gap tolling is permissible, petitioner had only 120 days in which to file 6 a federal petition as of June 7, 2016. It is self-evident that the AEDPA limitations period 7 therefore expired long before the filing of those state habeas petitions commencing in April 16, 8 2018. It is equally self-evident that the federal petition filed in February 28, 2019, is untimely. 9 Petitioner makes no claim whatsoever for equitable tolling due to extraordinary 10 circumstances outside of his control as defined in case law, and the undersigned will not discuss it 11 here. 12 Not only is an attack on the Placer County conviction time barred, to the extent that the 13 undersigned has read the petition correctly, the claim therein, improper use of the Placer County 14 conviction as an enhancement for the Sacramento County conviction, is barred by Lackawanna 15 Cty. Dist. Attorney, et al. v. Coss, 532 U.S. 394 (2001). In that case, the Supreme Court held that 16 with exceptions not applicable here, a prior conviction enhancement utilized in a successor case 17 could not be attacked unless petitioner was “in custody” for the prior conviction. Id. at 396-397. 18 As seen above, petitioner was not in custody for the Placer County conviction when the federal 19 petition was filed. 20 Conclusion 21 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 22 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 23 certificate of appealability may issue only “if the applicant has made a substantial showing of the 24 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 25 findings and recommendations, a substantial showing of the denial of a constitutional right has 26 not been made in this case. 27 //// 28 //// 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Respondent’s motion to dismiss (ECF No. 9) be granted; 3 2. The petition as it relates to the Placer County conviction should be dismissed for lack of 4 jurisdiction; and the petition as it relates to the Sacramento County conviction should be 5 dismissed as untimely. 6 3. The District Court decline to issue a certificate of appealability. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within fourteen days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: September 26, 2019 /s/ Gregory G. Hollows 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28