(HC) Munguia v. Robertson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS MUNGUIA, Case No. 1:18-cv-00742-LJO-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION 13 v. OBJECTIONS DUE IN FOURTEEN DAYS 14 JIM ROBERTSON, ECF No. 1 15 Respondent. ORDER DENYING MOTION TO APPOINT 16 COUNSEL 17 ECF No. 9 18 19 Petitioner Jose Luis Munguia, a state prisoner without counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2254. ECF No. 1. On April 30, 2019, we ordered petitioner to show 21 cause why his petition should not be dismissed for failure to state a claim and for untimeliness. 22 ECF No. 7. On May 31, 2019, petitioner filed a response and a motion to appoint counsel. ECF 23 No. 8, 9. Because petitioner has failed to address the deficiencies in his petition, we recommend 24 that his petition be dismissed. We deny petitioner’s motion to appoint counsel. 25 Failure to State a Claim 26 Petitioner makes one claim in his habeas petition: that the trial court erred when it 27 reopened voir dire following a mistake made by the prosecutor. ECF No. 1 at 4. The prosecutor 28 1 confused the names of two potential jurors and so struck the wrong juror. See People v. Munguia, 2 No. F069834, 2017 WL 360607, at *1-2 (Cal. Ct. App. Jan. 25, 2017). The trial court granted the 3 government’s request to address the mistake by reopening voir dire and allowing the prosecutor 4 an additional preemptory challenge. Id. The California Court of Appeal, Fifth District, 5 concluded that the trial court did not err under state law in reopening voir dire and that if any 6 error had occurred, it would have been harmless. See id. at *4. The court also held that the 7 alleged error did not implicate a right under the Constitution. See id. 8 A federal court may grant habeas relief when a petitioner shows that his custody violates 9 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 10 (2000). When a state court has adjudicated a petitioner’s claims on the merits, a federal court 11 reviews the state court’s decision under the deferential standard of section 2254(d). Section 12 2254(d) precludes a federal court from granting habeas relief unless a state court’s decision is 13 (1) contrary to clearly established federal law, (2) a result of an unreasonable application of such 14 law, or (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro, 15 882 F.3d 778, 801 (9th Cir. 2018). 16 Here, petitioner does not articulate how the trial court’s decision to reopen voir dire 17 violated federal law, unreasonably applied federal law, or was based on an unreasonable 18 determination of facts. Petitioner claims that the reopening of voir dire caused a waste of judicial 19 resources, juror mistrust, and a “change in the makeup of the jury.” ECF No. 8 at 2. Although a 20 claim of juror bias can give rise to a cognizable habeas claim, petitioner does not allege that a 21 biased juror was empaneled. It is not enough for him to claim that a “change in the makeup of the 22 jury” occurred without alleging any unconstitutional effects of that change. Petitioner’s lone 23 citation to federal law does nothing to support his claim. See Ariz. v. Fulminante, 499 U.S. 279 24 (1991) (declining to apply harmless error analysis to a coerced confession). Therefore, petitioner 25 has failed to state a cognizable habeas claim. 26 Even if petitioner had stated cognizable habeas claim under federal law, any errors, either 27 individually or cumulatively, would be harmless. A petitioner can obtain federal habeas relief 28 only if “the error had substantial and injurious effect or influence in determining the jury’s 1 verdict.” Brecht v. Abrahamson 507 U.S. 619, 637 (1993). To satisfy this standard, the court 2 must have “grave doubt” as to the outcome, meaning that “in the judge’s mind, the matter is so 3 evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” See 4 O’Neal v. McAninch, 513 U.S. 432, 435 (1995). Here, petitioner does not claim that the alleged 5 error affected the verdict. Therefore, we recommend dismissal. 6 Timeliness 7 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 8 habeas relief under § 2254 must comply with the statute of limitations set by 28 U.S.C. § 2244(d). 9 The one-year period begins on the latest of four dates: 10 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 11 review; 12 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the 13 United States is removed, if the applicant was prevented from filing by such State action; 14 (C) the date on which the constitutional right asserted was initially 15 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively 16 applicable to cases on collateral review; or 17 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of 18 due diligence. 19 Id.; see also Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001). 20 The statute of limitations period can be tolled in various ways. For example, a petitioner 21 can obtain equitable tolling if he shows: “(1) that he has been pursuing his rights diligently, and 22 (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Williams 23 v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting Holland v. Florida, 560 U.S. 631, 649 24 (2010)). 25 We ordered petitioner to show cause why his petition should not be dismissed for failure 26 to file within the statute of limitations. ECF No. 7 at 4. Petitioner failed to address the statute of 27 limitations in his response to the order to show cause. ECF No. 8. Petitioner (1) failed to file his 28 petition within a year of the judgement becoming final, (2) failed to show that any of the 1 provisions of § 2244(d)(1)(B-D) apply to him, and (3) failed to show entitlement to equitable 2 tolling. Therefore, we recommend that the petition be dismissed as untimely. 3 Motion to Appoint Counsel 4 Petitioner moved for the appointment of counsel, stating that he lacks the financial 5 resources to obtain counsel and the legal knowledge to represent himself. ECF No. 9. A 6 petitioner in a habeas proceeding does not have an absolute right to counsel. See Anderson v. 7 Heinze, 258 F.2d 479, 481 (9th Cir. 1958) (“The Sixth Amendment has no application 8 here . . . .”). 9 In habeas proceedings, there are three specific circumstances in which appointment of 10 counsel is required. First, appointment of counsel is required for an indigent person seeking to 11 vacate or set aside a death sentence in post-conviction proceedings under 28 U.S.C §§ 2254 or 12 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel may be required if an 13 evidentiary hearing is warranted. See R. Governing § 2254 Cases 8(c). Third, appointment of 14 counsel may be necessary for effective discovery. See id. at 6(a). None of these situations are 15 present here. 16 This court is further authorized to appoint counsel for an indigent petitioner in a habeas 17 corpus proceeding if the court determines that the interests of justice require the assistance of 18 counsel. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). 19 However, “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to 20 appointed counsel unless the circumstances of a particular case indicate that appointed counsel is 21 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to 22 appoint counsel, we evaluate the petitioner’s likelihood of success on the merits as well as the 23 ability of the petitioner to articulate his claims without counsel, considering the complexity of the 24 legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 25 We cannot conclude that counsel is necessary to prevent a due process violation. The 26 legal issues currently involved are not exceptionally complicated, petitioner is able to articulate 27 his claims, and petitioner has not demonstrated a likelihood of success on the merits. 28 Accordingly, we find that appointed counsel is not necessary to guard against a due process 1 violation and that the interests of justice do not require the appointment of counsel. Petitioner’s 2 motion to appoint counsel is denied. 3 Certificate of Appealability 4 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 5 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 7 requires a district court to issue or deny a certificate of appealability when entering a final order 8 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 9 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 10 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 11 standard requires the petitioner to show that “jurists of reason could disagree with the district 12 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 13 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 14 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 15 Here, petitioner has not made a substantial showing of the denial of a constitutional right. 16 Thus, we recommend that the court decline to issue a certificate of appealability. 17 Order 18 Petitioner’s motion to appoint counsel is denied. ECF No. 9. 19 Findings and Recommendations 20 We recommend that the court dismiss the petition for failure to state a claim and as 21 untimely. ECF No. 1. 22 These findings and recommendations are submitted to the U.S. District Court judge 23 presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 24 Practice for the United States District Court, Eastern District of California. Within 14 days of the 25 service of the findings and recommendations, any party may file written objections to the findings 26 and recommendations with the court and serve a copy on all parties. That document must be 27 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 28 will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 1 > IT IS SO ORDERED. ° y 6, —N prssann — Dated: _ February 6, 2020 4 UNI STATES MAGISTRATE JUDGE 5 6 7 | No. 206. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28