(HC)Moore v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUIS DOMINIQUE MOORE, No. 2:19-cv-1131 MCE KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, 15 Respondents. 16 17 Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas 18 1corpus pursuant to 28 U.S.C. § 2254. On January 27, 2020, respondent filed a motion to dismiss 19 this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. § 2244(d). 20 Petitioner did not timely oppose the motion. Following multiple extensions of time, petitioner 21 filed an opposition on August 10, 2020. Respondent did not file a reply. 22 I. Chronology 23 Petitioner was convicted on January 6, 2012, of three counts of robbery, two counts of 24 assault with a firearm, one count of attempted murder, one count of burglary, and one count of 25 false imprisonment, stemming from three separate incidents. (ECF No. 18-1.) In addition, the 26 jury found true various gun use enhancements, along with other enhancements. (Id.) Petitioner 27 was sentenced to an indeterminate prison term of 83 years-to-life. (ECF No. 18-1, 2.) 28 //// 1 Petitioner filed an appeal. On November 21, 2014, the California appellate court reversed 2 the sentence and remanded the case back to the trial court for re-sentencing. (ECF No. 18-2.) 3 On December 23, 2014, petitioner filed a petition for review in the California Supreme 4 Court. (ECF No. 18-3.) On February 20, 2015, the California Supreme Court granted review. 5 (ECF No. 18-4.) On August 17, 2016, the case was transferred back to the state appellate court to 6 vacate its decision and reconsider the case in light of People v. Franklin, 63 Cal. 4th 261, 268-69, 7 283-84 (2016). (ECF No. 18-5 at 5.) On August 23, 2016, the California Court of Appeal 8 vacated the November 21, 2014 decision. (ECF No. 18-5 at 5.) 9 On September 28, 2016, the California Court of Appeal affirmed petitioner’s judgment of 10 conviction, but the case was remanded “for a limited hearing to determine whether [petitioner] 11 was afforded an adequate opportunity to present evidence that sections 3051 and 4801 deem 12 relevant at youth offender parole hearings.” (ECF No. 18-5 at 5.) If petitioner had not been 13 provided such opportunity, the appellate court instructed the trial court “to conduct a hearing and 14 to accept evidence relevant to youth-related factors in a manner consistent with that described in 15 Franklin, supra, 63 Cal.4th at pages 283 to 284.” (ECF No. 18-5 at 5.) 16 Petitioner did not seek review in the California Supreme Court. 17 On October 3, 2017, petitioner filed his first federal petition for writ of habeas corpus, 18 which was dismissed on August 24, 2018, for failure to exhaust state court remedies. Moore v. 19 Kernan, No. 2:17-cv-2080 MCE KJN P (E.D. Cal.). (See ECF No. 18-13 to 16.) His motion for 20 stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005), was denied based on petitioner’s 21 failure to demonstrate good cause. Kernan, No. 2:17-cv-2080 MCE KJN P. (See ECF No. 18-15 22 at 8-9; 18-16.) 23 On April 27, 2018, petitioner filed his first state petition for writ of habeas corpus in the 24 San Joaquin County Superior Court.1 (ECF No. 18-7.) The state superior court denied the 25 petition on May 31, 2018. (ECF No. 18-8.) 26 27 1 All of the filing dates for petitioner’s state habeas petitions were given benefit of the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988). 28 1 On September 6, 2018, petitioner filed a second petition for writ of habeas corpus in the 2 San Joaquin County Superior Court. (ECF No. 18-9.) The state superior court denied the petition 3 on October 18, 2018. (ECF No. 18-10.) 4 On November 2, 2018, petitioner filed a petition for writ of habeas corpus in the 5 California Supreme Court. (ECF No. 18-11.) On April 17, 2019, the California Supreme Court 6 denied the petition, citing See In re Waltreus (1965) 62 Cal. 2d 218, 225 (courts will not entertain 7 habeas corpus claims that were rejected on appeal). (ECF No. 18-12 at 1.) 8 On April 29, 2019, petitioner filed the instant federal petition.2 (ECF No. 1.) 9 II. Standards Governing Motion to Dismiss 10 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 11 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 12 petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth 13 Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under 14 Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 15 (1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority 16 under Rule 4. 17 III. Statute of Limitations 18 A. Legal Standards 19 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became 20 law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of 21 habeas corpus filed by state prisoners. This statute of limitations provides that: 22 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 23 a State court. The limitation period shall run from the latest of – 24 2 Petitioner raises three claims in the instant petition: (1) petitioner’s sentence of 83 years-to-life 25 constitutes a de facto life sentence without parole in violation of Miller v. Alabama, 132 S. Ct. 2455 (2012); (2) petitioner is entitled to re-sentencing because the court was not presented with 26 evidence of, and failed to give consideration to, the hallmark features of youth that rendered 27 petitioner less culpable than an adult, and defense counsel failed to fully investigate or present such evidence; and (3) petitioner’s sentence is cruel and unusual punishment in violation of the 28 Eighth Amendment. (ECF No. 1.) 1 (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; 2 (B) the date on which the impediment to filing an application created 3 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 4 State action; 5 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 6 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 7 (D) the date on which the factual predicate of the claim or claims 8 presented could have been discovered through the exercise of due diligence. 9 10 28 U.S.C. § 2244 (d)(1). 11 B. Calculation of Limitations Period 12 For purposes of calculating the limitations period in this case, § 2244(d)(1)(A) applies. 13 Petitioner’s judgment was affirmed by the California Court of Appeal on September 28, 2016. 14 (ECF No. 18-6.) Because petitioner did not file a petition for review in the California Supreme 15 Court, his conviction became final on November 7, 2016, 40 days after September 28, 2016. 16 Waldrip v. Hall, 548 F.3d 729, 235 (9th Cir. 2008). The statute of limitations period began to run 17 the next day, November 8, 2016. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the 18 AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed. R. 19 Civ. P. 6(a)). Absent tolling, petitioner’s last day to file his federal petition was on November 8, 20 2017. The instant petition, filed April 29, 2019, is therefore time-barred unless petitioner is 21 entitled to statutory or equitable tolling. 22 C. Statutory Tolling 23 Section 2244(d)(2) provides that “the time during which a properly filed application for 24 State post-conviction or other collateral review with respect to the pertinent judgment or claim is 25 pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). A properly 26 filed application is one that complies with the applicable laws and rules governing filings, 27 including the form of the application and time limitations. Artuz v. Bennett, 531 U.S. 4, 8 (2000). 28 //// 1 State habeas petitions filed after the one-year statute of limitations has expired do not 2 revive the statute of limitations and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 3 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations period that 4 has ended before the state petition was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 5 Here, petitioner’s first state habeas petition was filed on April 27, 2018, about five and a 6 half months after the status of limitations expired on November 8, 2017. Because the state court 7 petitions were filed after the limitations period expired, petitioner is not entitled to statutory 8 tolling for any of his state habeas petitions. 9 D. Prior Federal Petition 10 Although petitioner filed a previous federal petition, such filing offers no tolling of the 11 statute of limitations. “[A]n application for federal habeas corpus review is not an ‘application 12 for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. 13 § 2244(d)(2),” and “therefore [does] not toll the limitation period.” Duncan v. Walker, 533 U.S. 14 167, 181-82 (2001). 15 E. Equitable Tolling 16 1. Governing Standards 17 The one-year statute of limitations for filing a habeas petition may be equitably tolled if 18 extraordinary circumstances beyond a prisoner’s control prevent the prisoner from filing on time. 19 Holland v. Florida, 560 U.S. 631, 645 (2010). A habeas petitioner is only entitled to equitable 20 tolling of the one-year statute of limitations if he shows: “‘(1) that he has been pursuing his rights 21 diligently; and (2) that some extraordinary circumstances stood in his way’ and prevented timely 22 filing.” Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). An “extraordinary 23 circumstance” has been defined as an external force that is beyond the prisoner’s control. Miles 24 v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). “The diligence required for equitable tolling 25 purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’” Holland, 560 U.S. at 653 26 (internal citations and additional quotation marks omitted). In addition, petitioner must 27 demonstrate that the “‘extraordinary circumstances’ were the cause of his untimeliness.” Spitsyn 28 v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), quoting Stillman v. LaMarque, 319 F.3d 1199, 1203 1 (9th Cir. 2003) (“petitioner entitled to equitable tolling ‘since prison officials’ misconduct 2 proximately caused the late filing.’”); Grant v. Swarthout, 862 F.3d 914, 924 (9th Cir. 2017). 3 “The threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions 4 swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal citations and 5 quotations omitted). 6 To apply the doctrine in “extraordinary circumstances” necessarily suggests the doctrine’s rarity, and the requirement that extraordinary 7 circumstances “stood in his way” suggests that an external force must cause the untimeliness, rather than, as we have said, merely 8 “oversight”, miscalculation or negligence on [the petitioner’s] part, all of which would preclude the application of equitable tolling. 9 10 Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert. 11 denied, 130 S. Ct. 244 (2009). Equitable tolling is “a very high bar, and is reserved for rare 12 cases.” Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). It is petitioner’s burden to 13 demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. California, 432 F.3d 14 1021, 1026 (9th Cir. 2005). 15 2. Discussion 16 First, petitioner claims that at the time of his arrest he was a 17 year old minor who had no 17 prior legal training and was not aware that there was a one year statute of limitation for filing a 18 federal petition. (ECF No. 25 at 2.) However, general ignorance of the law is not a ground for 19 equitable tolling. “While [a habeas petitioner’s] pro se status is relevant, we have held that a pro 20 se petitioner’s confusion or ignorance of the law is not, itself, a circumstance warranting equitable 21 tolling.” Waldron-Ramsey, 556 F.3d at 1013 n.4 (citing Rasberry v. Garcia, 448 F.3d 1150, 1154 22 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary 23 circumstance warranting equitable tolling.”) In addition, although petitioner was a minor at the 24 time of his arrest, he was no longer a minor by the time the limitations period began to run in 25 2016.3 26 3 “[E]ven if the statute of limitations were to be tolled during a petitioner’s minority, the 27 petitioner's subsequent failure to file a federal petition within one year of reaching majority ultimate renders the federal habeas petition time-barred. Castañeda v. Arnold, No. 2:14-CV- 28 02014 GEB, 2015 WL 3648759, at *8 (E.D. Cal. June 10, 2015) (collecting cases). 1 Second, petitioner alleges there were multiple impediments to his timely filing. (ECF No. 2 25 at 2-3.) Petitioner claims such impediments were pointed out in his petition at page 13, ground 3 five, section (b). (ECF No. 25 at 3.) However, petitioner raises only three grounds in the instant 4 petition. (ECF No. 1, passim.) Review of the petition, including page 13, does not reflect any 5 explanation of impediments to petitioner’s timely filing. (Id.) 6 Third, petitioner generally argues that he was “prejudicially separated from access to any 7 of his legal papers to permit him to file a[] timely petition -- no transcripts, no law library access, 8 as new polic[ies] exist that no longer give[] prisoners free access to the prison law libraries 9 without a valid legal court deadline.” (ECF No. 25 at 3.) Petitioner claims that because he was 10 deprived of his legal papers, he had no proof to present to the prison law library staff to 11 demonstrate his urgent need to file the federal habeas petition. (Id.) But such statements are 12 vague, conclusory, and unsupported by dates, specific facts or evidence, especially considering 13 the extensive amount of time petitioner seeks to toll. 14 Specifically, petitioner provides no dates for any of the alleged deprivations, or the 15 implementation of the “new policies,” and has provided no documentary evidence confirming 16 such deprivations, either to the law library or to his legal materials. Petitioner’s failure to provide 17 dates is critical here because the court is unable to determine whether any such impediment 18 occurred during the limitations period. His references to “new policies” concerning access to the 19 prison law library are insufficient because he fails to provide copies of such policies or 20 specifically identify such policies for the court’s evaluation. In addition, petitioner fails to 21 explain why he needed transcripts in order to file a timely petition. The instant petition focuses 22 on challenges to petitioner’s 83 year-to-life sentence. Petitioner fails to explain why he was 23 unable to file a timely petition in this court without having trial transcripts. See Thibodeaux v. 24 Diaz, 2014 WL 1512226, at *6 (C.D. Cal. Apr. 9, 2014) (inability to access transcripts and 25 appellate briefs insufficient to warrant equitable tolling when petitioner failed to explain why 26 documents were necessary for filing petition); Perez v. Hedgpeth, 2009 WL 174145, *4 (E.D. 27 28 1 Cal. Jan. 23, 2009) (equitable tolling not granted when petitioner failed to explain why or how 2 lack of transcripts actually prevented him from pursuing state and federal habeas relief in timely 3 fashion). 4 Fourth, petitioner claims that the filing of his prior petitions were efforts made to exhaust 5 several issues as to new laws effective prior to petitioner’s conviction and the finalization of his 6 direct appeal, which were tactics used to gain access to the prison law library. (ECF No. 25 at 3.) 7 But his state habeas petitions were all filed after the federal statute of limitations period had 8 expired and thus offer no equitable tolling. 9 Petitioner provided a library access request form from CSATF. (ECF No. 25 at 9.) 10 However, such form bears no date, so the court is unable to determine when it was created or 11 used. Petitioner appears to argue that he was unable to access the prison law library unless he had 12 a court deadline. But the form provided by petitioner does not so indicate. Rather, the form 13 provides three purposes for requesting law library access: (1) conducting legal research; 14 (2) requesting legal copy services; or (3) requesting priority legal user (PLU) status. (Id.) The 15 form does not state that inmates must have a court deadline in order to attend the law library. 16 Instead, the form states that if the inmate is requesting PLU status, the inmate must bring proof of 17 the court deadline. (Id.) For these reasons, this form does not support plaintiff’s claim that he 18 was denied access to the law library. 19 The court acknowledges that under certain circumstances, the complete denial of access to 20 the prison law library may warrant the imposition of equitable tolling “if the denial is total and 21 causes his petition’s untimeliness.” Jackson v. Asuncion, 2018 WL 6516032, at *6 (C.D. Cal. 22 Aug. 31, 2018), adopted, 2018 WL 6507802 (C.D. Cal. Dec. 10, 2018). Similarly, equitable 23 tolling may apply where a complete lack of access to legal materials made timely filing 24 impossible. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (“Ordinary prison 25 limitations on Ramirez’s access to the law library and copier (quite unlike the denial altogether of 26 access to his personal legal papers) were neither ‘extraordinary’ nor made it ‘impossible’ for him 27 to file his petition in a timely manner.”). But here, petitioner has not demonstrated a total lack of 28 access to his legal materials or a complete denial of law library access that caused his 1 untimeliness. Rather, petitioner concedes he was unaware of the PLRA statute of limitations. 2 Fifth, petitioner claims that he relied on his appellate counsel to file a petition for review 3 after the Franklin hearing; when petitioner asked counsel for the transcripts and why no petition 4 for review was filed, petitioner “got no timely answer that would have been useful to use.” (ECF 5 No. 25 at 5.) Again, petitioner does not disclose the dates of such communications with appellate 6 counsel, provides no copies of letters between them, and also fails to demonstrate how his 7 reliance on appellate counsel filing a petition for review would constitute equitable tolling of the 8 federal limitations period. 9 Finally, petitioner has failed to demonstrate diligence. Petitioner provides no facts or 10 evidence to demonstrate he was reasonably diligent. The limitations period expired on November 11 8, 2017, yet petitioner did not file the instant petition until April 29, 2019, about one year and five 12 and a half months later. He fails to set forth what efforts he took to obtain his legal materials or 13 to gain access to the law library or to diligently pursue his rights during the limitations period. 14 Petitioner has not demonstrated that he diligently pursued his rights. 15 D. Conclusion 16 Thus, the undersigned finds that petitioner did not meet his burden to demonstrate that he 17 was reasonably diligent, or that extraordinary circumstances outside his control were the cause of 18 his untimeliness, particularly where he concedes he was unaware of the statute of limitations. 19 Because petitioner is not entitled to equitable tolling, his petition is barred by the statute of 20 limitations, and respondent’s motion to dismiss should be granted. 21 V. Recommendations 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. Respondent’s motion to dismiss (ECF No. 17) be granted; and 24 2. The petition for writ of habeas corpus (ECF No. 1) be dismissed with prejudice as 25 barred by the statute of limitations. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 28 being served with these findings and recommendations, any party may file written objections with wOAOe 2 LUV VEEL IVINS ING IN RAUL ON OF ee PAY AV VI AV 1 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations.” In his objections petitioner may address 3 | whether a certificate of appealability should issue in the event he files an appeal of the judgment 4 | inthis case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must 5 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 6 || Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability 7 | “should issue . . . if the prisoner shows, at least, [1] that jurists of reason would find it debatable 8 || whether the petition states a valid claim for the denial of a constitutional right, and [2] that jurists 9 | of reason would find it debatable whether the district court was correct in its procedural ruling.” 10 | Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir. 2001) (quoting Slack v. McDaniel, 529 11 | U.S. 473, 478 (2000)). Any response to the objections shall be served and filed within fourteen 12 | days after service of the objections. The parties are advised that failure to file objections within 13 | the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 14 | F.2d 1153 (9th Cir. 1991). 15 | Dated: August 19, 2020 i Fensbl A Abar 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 /moorl 131.mtd.sol 19 20 21 22 23 24 25 26 27 28 10