(HC) Givens v. Neuschmid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCOIS P. GIVENS, No. 2:17-cv-0328 KJM CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT NEUSCHMID, 15 Respondent. 16 17 Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas 18 corpus under 28 U.S.C. §2254. On November 3, 2020, the district court judge assigned to this 19 case granted respondent’s June 1, 2018 motion to dismiss. In particular, the court held that all 20 claims in petitioner’s February 26, 2018 amended petition for writ of habeas corpus that do not 21 “relate back” to claims in petitioner’s original petition are dismissed as time-barred. 22 Under Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure, an otherwise untimely 23 claim presented in an amended pleading “relates back to the date of the original pleading when . . 24 . the . . . claim arose out of the conduct, transaction, or occurrence set out—or attempted to be set 25 out—in the original pleading.” A claim in an amended petition “does not relate back . . . when it 26 asserts a new ground for relief supported by facts that differ in both time and type from those the 27 original pleading. . .” Mayle v. Felix, 545 U.S. 644, 650 (2005). Instead, a new claim in an 28 ///// 1 amended pleading must be tied to a claim asserted in the original by “a common core of operative 2 facts.” Id. at 664. 3 In his original petition, petitioner asserts that his appellate counsel either should not have 4 raised, or should not have been permitted to raise, claims concerning miscalculation of sentence 5 credit and the amount due for a “booking fee.” Instead, petitioner claims his appeal should have 6 proceeded pursuant to People v. Wende, 25 Cal.3d 436, 441–442 (1979) which identifies the 7 process required in California when appellate counsel indicates there are no potentially 8 meritorious claims to raise on appeal. 9 In his amended petition, petitioner’s first 11 claims do not involve petitioner’s appeal. 10 Therefore, the court agrees with respondent that none of those claims “relate back” to the claim 11 presented in petitioner’s original petition and must be dismissed. 12 Generally speaking, petitioner reasserts the claim presented in his original petition in 13 claim 12 of his amended petition and respondent appears to concede that claim 12 at least relates 14 back. However, the court finds that claim 12 is subject to summary dismissal under Rule 4 of the 15 Rules Governing Section 2254 cases, because claim 12 does not provide a basis for habeas corpus 16 relief. 17 On direct appeal, appellate counsel argued that petitioner was entitled to 356 days good 18 conduct sentence credit instead of the 53 days identified by the trial court. Appellate counsel also 19 argued that a “booking fee” identified in the abstract of judgment should be reduced by $1.00. 20 Error was admitted by The People of the State of California, and relief was granted. Petitioner 21 asserts it was error under California law for counsel to present these claims at the Court of Appeal 22 because the claims were not presented in the Superior Court first. Petitioner asserts the actions of 23 appellate counsel denied plaintiff the process outlined in People v. Wende. Had counsel not 24 raised the sentence credit and booking fee issues, petitioner asserts he would have had the 25 opportunity to file a pro se brief in which he would have raised several issues. 26 The California Supreme Court’s decision in Wende followed the United States Supreme 27 Court’s decision in Anders v. California, 386 U.S. 738 (1967). In that case, the Supreme Court 28 identified certain procedures which must be followed when appellate counsel finds there are no 1 appealable issues. One of the procedures is that the defendant himself be permitted the 2 opportunity to raise issues. Id. at 744. 3 Here, nothing under federal law required that counsel not raise the issues he did on appeal 4 and instead trigger the Wende process. Because a writ of habeas corpus can only be granted for 5 violations of federal law, 28 U.S.C. §2254(a), petitioner’s claim 12 should be summarily 6 dismissed. 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Claims 1-11 in petitioner’s amended petition for writ of habeas corpus be dismissed as 9 time-barred. 10 2. Claim 12 in petitioner’s amended petition for writ of habeas corpus be summarily 11 dismissed. 12 3. This case be closed. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 18 may address whether a certificate of appealability should issue in the event he files an appeal of 19 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 20 court must issue or deny a certificate of appealability when it enters a final order adverse to the 21 applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 22 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 23 debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 24 reason would find it debatable whether the petition states a valid claim of the denial of a 25 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 26 McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 27 within fourteen days after service of the objections. The parties are advised that failure to file 28 ///// 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: November 13, 2020 Pee a4 if / /, CAN fu fl. ay 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8] 9 give0328.1b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28