(HC) Guzman v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ENRIQUE FIGUEROA GUZMAN, No. 2:18-cv-0911-MCE-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 M.E. SPEARMAN, 15 Respondent. 16 17 Petitioner is a state prisoner who, proceeding without counsel, seeks a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. He filed his petition on April 13, 2018. ECF No. 1. On 19 June 24, 2019, respondent filed a motion to dismiss which argued that petitioner’s claims are 20 barred by the one-year statute of limitations which governs federal habeas claims. ECF No. 10. 21 Petitioner has filed an opposition. ECF No. 13. For the reasons stated hereafter, the petition 22 should be dismissed. 23 Background 24 In 1995 petitioner was convicted in the Sacramento County Superior Court of second- 25 degree murder. ECF No. 9-1. In recent years (2016 onward) he filed several state habeas actions 26 challenging his murder conviction (Lodg. Doc Nos. 2, 4, & 6) which invoked the United States 27 Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the 28 ///// 1 Supreme Court held that the residual clause1 of the Armed Career Criminal Act (“ACCA”) was 2 void for vagueness. Id. at 2557. Respondent argues that the Johnson-related claim raised in 3 petitioner’s federal habeas petition is barred by the statute of limitations. ECF No. 10. 4 Standard of Review 5 In the context of federal habeas claims, a motion to dismiss is construed as arising under 6 rule 4 of the Rules Governing Section 2254 in the United States District Courts which “explicitly 7 allows a district court to dismiss summarily the petition on the merits when no claim for relief is 8 stated.” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 9 695 F.2d 1195, 1198 (9th Cir. 1983)). Accordingly, a respondent is permitted to file a motion to 10 dismiss after the court orders a response, and the court should use Rule 4 standards in reviewing 11 the motion. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982). Rule 4 12 specifically provides that a district court may dismiss a petition if it “plainly appears from the 13 face of the petition and any exhibits annexed to it that petitioner is not entitled to relief in the 14 district court . . . .” Rule 4, Rules Governing Section 2254 Cases. 15 Analysis 16 Petitioner was convicted in 1995 - prior to the enactment of the Anti-Terrorism and 17 Effective Death Penalty Act (“AEDPA”) in 1996. Thus, he had (absent any tolling) until April 18 24, 1997 to file a timely federal habeas petition. See Lott v. Mueller, 304 F.3d 918, 920 (9th Cir. 19 2002) (“State prisoners, the relevant judgment against whom became final prior to the date of 20 enactment of the AEDPA, had until April 24, 1997, one year from the effective date of the 21 AEDPA, to file a petition.”). Petitioner’s first state habeas petition – required for exhaustion in 22 federal court – was not filed until 2016 (ECF No. 9-2), nearly two decades after the deadline. 23 The question, then, is whether some exception renders his petition timely. 24 ///// 25 26 1 18 U.S.C. § 924(c)(3)(B) defines “violent felony” in the context of the ACCA and provides that such an act includes one that is “burglary, arson, or extortion, involves use of 27 explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court noted that the closing words, emphasized above, have become 28 known as the residual clause. Johnson, 135 S. Ct. at 2555-56. 1 Petitioner argues that, insofar as his claim is predicated on the 2015 Johnson decision, it 2 is, once tolling is accounted for, timely. ECF No. 13 at 2. AEDPA provides that the one-year 3 trigger may run from “[t]he 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 5 and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). But 6 petitioner was not sentenced under the ACCA. And Penal Code Section 189 – which he 7 compares to the relevant portion of the ACCA (ECF No. 1 at 8-9) – does not contain the language 8 the Supreme Court took issue with. In Johnson v. Fox, another district court in this circuit 9 analyzed an identical claim and, in language this court finds persuasive, determined: 10 Petitioner claims that California Penal Code Section 189’s (“§ 189”) “second degree murder residual clause is void-for-vagueness, in 11 violation of the 5th and 14th amendments to the United States Constitution . . . .” Importantly, however, Johnson is inapposite 12 because Petitioner's sentence was not enhanced under ACCA’s ‘residual clause’ or any other similar statute. 13 Indeed, Petitioner challenges: (1) a state statute; that (2) does not 14 discuss any sentencing enhancements; and (3) does not require a wide-ranging inquiry into whether Petitioner's crimes posed any 15 serious potential risk of physical injury to another [as in Johnson]. Therefore, because Petitioner was not sentenced under ACCA’s 16 residual clause, or even any similar state law equivalent, Johnson created no new Due Process right applicable to Petitioner, and the 17 limitations period prescribed in 28 U.S.C. § 2244(d)(1)(C)] does not apply. 18 19 No. LA CV 16-9245 GW (JCG), 2016 U.S. Dist. LEXIS 185981, at *4-5 (C.D. Cal. Dec. 20, 20 2016) (alteration omitted) (emphasis in original) (footnote omitted) (citations omitted) (some 21 internal quotation marks omitted), Report and Recommendation adopted by 2017 U.S. Dist. 22 LEXIS 58509 (C.D. Cal. Apr. 14, 2017). And other courts have reached similar conclusions. 23 See, e.g., See Renteria v. Asunsion, No. CV 16-6874 R (FFM), 2016 U.S. Dist. LEXIS 174456, 24 at * 6-7 (C.D. Cal. Dec. 16, 2016) (“The Court’s decision in Johnson was narrow and based on 25 the confluence of nine years of difficulty interpreting the provision, the remaining language of the 26 statute, and the language of the residual clause itself. Thus Johnson cannot be read so broadly as 27 to have also found California’s second-degree felony-murder elements also unconstitutionally 28 vague . . . . [b]ecause Johnson does not represent the Supreme Court’s recognition of a new rule 1 | of constitutional law that is applicable to Petitioner, he is not entitled to a later start date of the 2 | one-year limitations period under 28 U.S.C. § 2244(d)(1)(C).”); Lively v. Spearman, No. CV 18- 3 || 02760-TJH (AGR), 2018 U.S. Dist. LEXIS 221783, *21-22 (C.D. Cal. Dec. 18, 2018) (holding 4 | that petitioner was not entitled to a later start date under 28 U.S.C. § 2244(d)(1)(C) because “there 5 || is no indication Johnson invalidated California’s second-degree felony-murder rule.”). 6 Thus, petitioner’s claim is barred by the statute of limitations and, even if it was not, the 7 || court would dismiss it on the merits. 8 Conclusion 9 Accordingly, it is RECOMMENDED that respondent’s motion to dismiss (ECF No. 10) 10 || be GRANTED and the petition be DISMISSED as time-barred and for failure to present a claim 11 | that entitles him to federal habeas relief. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 19 | his objections petitioner may address whether a certificate of appealability should issue in the 20 || event he files an appeal of the judgment in this case. See Rule 11, Rules Governing 21 || § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 22 || final order adverse to the applicant). 23 | DATED: February 12, 2020. ou by Z Z 4 iL Mm 4 24 EDMUND F. BRENNAN 95 UNITED STATES MAGISTRATE JUDGE 26 27 28