(HC) Reid v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLTON L. REID, No. 2:20-cv-01596 KJM GGH 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, 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). Pending before the court is 22 respondent’s motion to dismiss on the ground that petitioner is barred by the one-year state of 23 limitations pursuant to 28 U.S.C. § 2244(d). ECF No. 15. Petitioner has filed an opposition. ECF 24 No. 23. Respondent has filed a reply. ECF No. 26. After carefully reviewing the filings and 25 applicable legal standards, the court now issues the following findings and recommendations. 26 This is the infrequent case where a petitioner, diligent in investigating claims, has still run 27 afoul of the applicable statute of limitations period. For the reasons set forth below all presently 28 stated claims should be dismissed with prejudice. In addition, petitioner should be granted leave 1 to amend the petition to state a standalone “actual innocence” claim based on DNA assertions and 2 cell phone records only. 3 Factual Background 4 The California Court of Appeal, Third Appellate District provides the relevant 5 background information and is provided below: 6 A jury convicted defendant Carlton Reid of first degree murder (Pen. Code, § 1871 (Footnote 1 omitted)) and found true the 7 allegations that he used a firearm during the crime (former § 12022.53, subd. (b)), personally and intentionally discharged the 8 firearm (former § 12022.53, subd. (c)), and the firearm discharge caused death (former § 12022.53, subd. (d), 2010 Stats., ch. 711, § 9 5). The trial court sentenced defendant to serve 25 years to life in prison for the murder in addition to a 25–year enhancement for use 10 of a firearm. 11 People v. Reid, No. C072786, 2015 WL 5697333, at *1 (Cal. Ct. App. Sept. 29, 2015). 12 Thereafter, petitioner sought review in the California Supreme Court. Petitioner’s petition 13 for review was denied on December 16, 2015. ECF No. 16-4. For purposes of federal habeas 14 review, petitioner’s conviction became final on March 15, 2016, ninety days after the California 15 Supreme court denied petitioner’s petition for review. See Summers v. Schriro, 481 F.3d 710, 716 16 (9th Cir. 2007). Respondent has set forth a detailed account of petitioner’s further state habeas 17 corpus petitions, including incorporation of the “mailbox rule,” which has been reviewed, and is 18 provided here: 19 The First Petition: 20 February 5, 2017: Petition for writ of habeas corpus filed in the Sacramento County Superior Court (Lod. Doc. 5); 21 June 9, 2017: Petition denied (Lod. Doc. 6); 22 The Second Petition: 23 March 7, 2017: Petition for writ of habeas corpus filed in the 24 Sacramento County Superior Court (Lod. Doc. 7);1 25 May 22, 2017: Petition denied (Lod. Doc. 8); 26 //// 27 1 This petition was essentially subsumed within the first when the court ruled on both 28 petitions. These first two habeas petitions are treated as one petition for tolling purposes. 1 The Third Petition: 2 July 26, 2017: Petition for writ of habeas corpus filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 9); 3 October 5, 2017: Petition denied (Lod. Doc. 10); 4 The Fourth Petition: 5 November 18, 2017: Petition for writ of habeas corpus filed in the 6 Sacramento County Superior Court (Lod. Doc. 11); 7 January 24, 2018: Petition denied (Lod. Doc. 12); 8 The Fifth Petition: 9 July 1, 2018: Petition for writ of habeas corpus filed in the California Court of Appeal, Third Appellate District (Lod. Doc. 10 13); 11 July 13, 2018: Petition denied (Lod. Doc. 14); 12 The Sixth Petition: 13 September 6, 2018: Petition for writ of habeas corpus filed in the California Supreme Court (Lod. Doc. 15); 14 November 21, 2018: Petition withdrawn (Lod. Doc. 16); 15 The Seventh Petition: 16 March 12, 2020: Petition for writ of habeas corpus filed in the 17 California Supreme Court (Lod. Doc. 17); 18 June 17, 2020: Petition denied, citing In re Robbins, 18 Cal. 4th 770, 780 (1998) (Lod. Doc. 18). 19 20 ECF No. 15 at 2-3. 21 Petitioner filed his federal habeas petition on August 5, 2020.2 ECF No. 1. 22 Discussion 23 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 24 1996 (hereinafter “AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year 25 26 2 The court affords petitioner application of the mailbox rule as to all his habeas filings in state court and federal court. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing 27 is dated from the date prisoner delivers it to prison authorities); Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to pro se prisoner who delivers habeas petition 28 to prison officials for the court within limitations period). 1 statute of limitations for federal habeas corpus petitions. 28 U.S.C. § 2244(d)(1) provides, in 2 pertinent part: 3 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 4 a State court. The limitation period shall run from the latest of– 5 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 6 seeking such review; 7 (B) the date on which the impediment to filing an application created by State action in violation of the 8 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was 10 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 11 retroactively applicable to cases on collateral review; 12 (D) or the date on which the factual predicate of the claim or claims presented could have been discovered through the 13 exercise of due diligence. 14 28 U.S.C. § 2244(d)(1)(A)-(D). 15 Petitioner sets forth no facts or arguments indicating that the grounds identified in 28 16 U.S.C. § 2244(d)(1)(B)-(D) are applicable. The statute of limitations thus began to run on “the 17 date on which the judgment became final by the conclusion of direct review or the expiration of 18 the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 19 The pendency of state post-conviction collateral review may toll the statute of limitations. 20 See 28 U.S.C. § 2244(d)(2). It is not necessary to set forth here the complete panoply of law 21 regarding statutory tolling. The case law pertinent to the issues here is given below. In addition, 22 extraordinary circumstances which prevent a petitioner from timely filing may cause the AEDPA 23 limitations period to be tolled as well. Holland v. Florida, 560 U.S. 631 (2010). Again, however, 24 it is not necessary to detail all the ins and outs of equitable tolling in that equitable tolling cannot 25 make a difference to the limitations period outcome here. With discrete exceptions listed below, 26 and as specifically requested by petitioner, the undersigned has assumed the existence of periods 27 in which equitable tolling could be justified. 28 //// 1 Applying certain principles of statutory tolling, respondent contends that the AEDPA 2 limitations period expired prior to the filing of the federal petition. Petitioner opposed 3 respondent’s calculations on the basis that all his state filings should toll the limitations periods 4 whether or not they were actually state habeas petitions, e.g., motions to obtain records, writs of 5 mandate, requests for discovery. Petitioner also claimed equitable tolling based on his claimed 6 inabilities to file habeas petitions at discrete times before and during the running of the AEDPA 7 limitations period. Finally, petitioner weaves actual innocence theories based on DNA findings 8 and cell phone records through several claims all of which simply involve a potpourri of trial 9 court and counsel errors. The discussion concerning actual innocence appears below. 10 The parties agree that the finality of the conviction occurred on March 15, 2016, and that 11 the AEDPA limitations period commenced to run on the next day, March 16, 2016. Because 12 petitioner’s claims of statutory tolling and equitable tolling overlap somewhat, the precise days of 13 tolling and expiration of the limitations period are confusing. The undersigned has constructed a 14 chart below precisely defining when days in the limitations period were tolled and when they 15 were not. The chart has been constructed with the following principles: 16 1. For the purpose of argument, with the following stated exceptions, all of petitioner’s 17 claimed periods of equitable tolling have been applied, albeit, some of the equitable tolling 18 overlaps with periods which were statutorily tolled in any event, and one claimed period for 19 equitable tolling occurred prior to the finality of the conviction, i.e., prior to the commencement 20 of the AEDPA limitations period. The short periods petitioner did not have his property in 21 Administrative Segregation (hereinafter “Ad-Seg”), see ECF No. 23 at 3, are not subject to 22 equitable tolling. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). 23 2. Petitioner’s non-habeas state filings do not count as filings which would statutorily toll 24 the AEDPA limitations period. Ramirez v. Yates, 571 F.3d at 1000: (“His discovery motions ‘did 25 not challenge his conviction,’ but simply ‘sought material he claimed might be of help’ in later 26 state proceedings. Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001).”)3 27 3 The Ramirez court continued: “We agree with the Second Circuit that ‘if a filing of that 28 sort could toll the AEDPA limitations period, prisoners could substantially extend the time for 1 March 16, 2016 - Feb. 4, 2017 2 Statutory Tolling – Non-Applicable Equitable Tolling – Tolling cannot be applied for 3 the 2015 broken hand as occurrences prior to the 4 finality of the conviction cannot toll a limitations 5 period which has not commenced i.e., there is 6 nothing to toll. However, petitioner is entitled to 7 56 days of tolling for his second hand operation as 8 petitioner alleges this 8-week recovery took place 9 starting July 2016. Finally, petitioner is not 10 entitled to tolling for the short periods petitioner 11 did not have his legal property in Ad-Seg. 12 Ramirez, supra. 13 325 (Expired days of the AEDPA one-year limitations period) – 56 (days tolled) = 269 – 269 14 Cumulative Days Expired – 269 15 February 5, 2017 – October 5, 2017 16 Statutory Tolling – all days statutorily Equitable Tolling – Non-Applicable 17 tolled for this first round of state habeas 18 petitions. 19 Expired days of the AEDPA one-year limitations period – 0 20 Cumulative Days Expired – 269 21 October 6, 2017 – November 17, 2017 22 Statutory Tolling – Non-Applicable Equitable Tolling – Non-Applicable 23 This is a gap period between petitioner’s 24 first round of state habeas filings and a new 25 26 filing federal habeas petitions by pursuing in state courts a variety of applications that do not challenge the validity of their convictions. […] Moreover, ‘[i]f a prisoner believes he is entitled to 27 discovery in aid of a state or federal collateral attack, his remedy is to seek such relief from the court where a properly filed and timely collateral attack on his conviction is pending.’ Id.” 28 Ramirez v. Yates, 571 F.3d at 1000. 1 round commenced in Superior Court. Petitioner 2 is not entitled to tolling during this “between 3 rounds” gap period for unrelated petitions. 4 Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 5 2010). As petitioner stated: “This is a successive 6 writ of habeas corpus petition…Petitioner now 7 comes before this [Superior] court with 8 constitutional issues not brought before it 9 with an opportunity to resolve them.” ECF No. 10 16-12 at 7. 11 Expired days of the AEDPA one-year limitations period – 42 12 Cumulative Days Expired – 311 13 November 18, 2017 - November 21, 2018 14 Statutory Tolling – 0 days expired. Equitable Tolling – Non-Applicable 15 Petitioner has been given all days for tolling, Although the undersigned would have 16 although the gap of time between the first given equitable tolling for all times 17 decision and the filing of the second petition petitioner was out to court, this 18 appears to be unreasonably long and probably equitable tolling is subsumed by the statutory 19 would not qualify for statutory tolling.4 statutory tolling. Petitioner was out to court 20 The statutory tolling ended when petitioner from February 12, 2018 to May 30, 2018 21 withdrew his petition before the California and did not have access to his legal property. 22 Supreme Court. 23 Expired days of the AEDPA one-year limitations period – 0 24 Cumulative Days Expired – 311 25 //// 26 4 See Robinson v. Lewis, 9 Cal. 5th 883, 901 (2020): On certified question from the Ninth 27 Circuit, the California Supreme Court held that generally 120 days would be a presumptively satisfactory time limit for the filing of new habeas petitions in a higher court after the previous 28 petition was denied. 1 November 22, 2018 – March 11, 2020 2 Statutory Tolling – None-Applicable Equitable Tolling – Non-Applicable 3 As set forth above, petitioner withdrew his 4 state supreme court petition, and did not 5 re-file until March 12, 2020 (decided June 6 17, 2020). The undersigned knows of no 7 authority for the proposition that one may 8 withdraw a petition, refile months later, 9 and have that gap period after withdrawal 10 qualify as a “pending” petition. Moreover, 11 the March 12, 2020 petition was denied on 12 the basis of untimeliness (In re Robbins, 13 supra) which precludes it from qualifying 14 as a “properly filed” state petition for 15 AEDPA limitations purposes.5 16 Expired days of the AEDPA one-year limitations period – 475 17 Cumulative Days Expired – 786 18 Therefore, the AEDPA limitations period expired in the early part of 2020 (on or about 19 January 16, 2019). The instant federal petition was filed on August 5, 2020. Thus, even with 20 consideration of equitable tolling, the petition is untimely. 21 Actual Innocence Claim 22 A petitioner may claim actual innocence in an attempt to overcome the statute of 23 limitations hurdle. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“We hold that actual 24 innocence, if proved, serves as a gateway through which a petitioner may pass whether the 25 impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of 26 5 See Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir.2005) (a petition denied as untimely 27 is not properly filed and cannot toll the limitations period); Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir.2007) (a California court's citation to In re Robbins, 18 Cal.4th at 780, is a “clear ruling” 28 of untimeliness). 1 the statute of limitations.”) Under the actual innocence exception to the statute of limitations, a 2 petitioner must show that “ ‘in light of the new evidence, no juror, acting reasonably, would have 3 voted to find him guilty beyond a reasonable doubt.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298, 4 329 (1995)); House v. Bell, 547 U.S. 518, 538 (2006)(“A petitioner's burden at the gateway stage 5 is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror 6 would find him guilty beyond a reasonable doubt-or, to remove the double negative, that more 7 likely than not any reasonable juror would have reasonable doubt.”). See also Schlup, 513 U.S. at 8 324 (“To be credible, [a claim of actual innocence] requires petitioner to support his allegations 9 of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, 10 trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial.”). 11 As stated earlier, petitioner weaves his actual innocence assertions through several of the 12 belated, and now limitations barred, myriad claims. He asserts that because the killer was 13 involved in a push and tug scuffle with the gloved victim just before the shooting, and no DNA 14 evidence was found on the gloves which identified petitioner as one of the scufflers, he is 15 exonerated from the killing. Petitioner also asserts that cell phone records will prove that he 16 could not have been at the scene of the crime. 17 The undersigned has reviewed the petition herein, and petitioner has not set forth a 18 standalone, actual innocence claim. Moreover, the evidence presented thus far is either 19 incomplete or confusing. Petitioner has gone no distance in showing that the scuffler/killer’s 20 DNA would likely have been transmitted to the victim’s gloves. It is unclear whether petitioner 21 actually has in his possession evidence that cell phone records placed him elsewhere at the time 22 of the killing, or that petitioner thinks such might be proved in the future. Nevertheless, the 23 undersigned is reluctant at this point to dismiss out-of-hand a claim, which if ultimately proved, 24 could exonerate petitioner. 25 Thus, petitioner should be given a chance to set forth a standalone claim of actual 26 innocence. That is, for petitioner’s understanding, all of his presently stated claims are barred by 27 the AEDPA statute of limitations, and he should not repeat them. But petitioner will be given a 28 chance to amend his petition to state one claim, i.e., that he is actually innocent of the crime and 1 enhancements for which he was convicted. Petitioner is to clearly explain why the evidence he 2 now possesses shows the actual innocence assertions to be true and of consequence to his 3 conviction. Petitioner shall explain why he thinks such a standalone claim has been exhausted 4 (by being presented) in the California Supreme Court. 5 Respondent shall then have the opportunity to seeks dismissal/denial of such a claim, 6 either through motion or answer on the merits. 7 Conclusion 8 Accordingly, IT IS HEREBY RECOMMENDED that: 9 1. Respondent’s motion to dismiss (ECF No. 15) be GRANTED; 10 2. The petition for writ of habeas corpus (ECF No. 1) should be DISMISSED as barred 11 by the AEDPA statute of limitations. Petitioner should be granted leave to amend his 12 petition to state a standalone actual innocence claim; 13 3. Petitioner should be granted sixty (60) days from the adoption of these findings and 14 recommendations, to file an amended petition for writ of habeas corpus that alleges 15 only one claim of actual innocence based on DNA results and/or cell phone data; and 16 4. Failure to file an amended petition within the requisite deadline may result in the 17 instant action being closed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 23 shall be served and filed within fourteen days after service of the objections. The parties are 24 advised that failure to file objections within the specified time may waive the right to appeal the 25 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: May 13, 2021 /s/ Gregory G. Hollows 27 UNITED STATES MAGISTRATE JUDGE 28