(HC) Galaz v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONALDO GALAZ, Case No. 1:23-cv-00468-CDB (HC) 12 Petitioner, ORDER DISMISSING WITHOUT PREJUDICE PETITION WITH LEAVE TO 13 v. FILE A FIRST AMENDED PETITION 14 CHRISTIAN PFEIFFER, 30-DAY DEADLINE 15 Respondent. (Doc. 1) 16 17 Petitioner Donaldo Galaz (“Petitioner”) is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition seeks 19 review of an adverse Parole Board Hearing in 2021. Id. 20 Preliminary Screening 21 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 22 review of each petition for writ of habeas corpus. Pro se habeas corpus petitions are to be 23 liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must 24 dismiss a petition “[i]f it plainly appears from the petition…that the petitioner is not entitled to 25 relief.” Habeas Rule 4. Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief 26 available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief 27 requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (“Habeas Corpus 1 Rule 2(c) is more demanding”). Allegations in a petition that are vague, conclusory, or palpably 2 incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 3 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 4 appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. 5 Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam). 6 Procedural and Factual Background 7 According to the Petition, in 1996, Petitioner was convicted in the Superior Court of Los 8 Angeles County by jury trial, for conspiracy to commit murder, attempted murder, and shooting 9 an inhabited dwelling, with enhancements of felon in possession of a firearm and two prior felony 10 convictions. (Doc. 1 at 5). Petitioner was sentenced to serve a term of 85 years to life in prison 11 with the possibility of parole. Id. Petitioner claims he appealed his conviction to the California 12 Court of Appeals and the California Supreme Court. Id. at 5-6. 13 At some point, Petitioner was placed in Kern Valley State Prison, which is located in the 14 Eastern District of California. Id. at 1. On March 12, 2021, Petitioner was granted a parole 15 suitability hearing. Id. at 2. Petitioner was denied parole on August 19, 2021. Id. Petitioner 16 petitioned the Parole Board for a review of the merits, which was denied on September 9, 2021. 17 Id. On January 19, 2023, Petitioner filed a state habeas petition to the Superior Court of Los 18 Angeles County. Id. at 11. 19 On February 27, 2023, Petitioner filed a federal habeas petition to the Central District of 20 California. Id. Petitioner asserts the Parole Board’s denial of his parole in 2021, deprived him of 21 due process and equal protection of the laws in violation of the 14th Amendment. Id. at 8-11. 22 Petitioner argues the presiding commissioner was biased because of a past position he held. Id. at 23 8. Petitioner next claims he was not properly provided with documents that were to be presented 24 and used at his suitability hearing “as required by statute.” Id. at 9. Petitioner argues the Parole 25 Board “failed to articulate how [Petitioner], in his advanced age, diminished cognitive and 26 physical condition, poses an unreasonable risk and threat to public safety as required by statute.” 27 Id. Petitioner also asserts he was not properly afforded an opportunity to refute or contest any 1 Petitioner requests the Court stay and hold in abeyance his federal habeas petition until he 2 exhausts all state remedies. Id. at 2. Petitioner argues he is entitled to equitable tolling of his 3 petition as he contracted COVID-19 in November 2021, the institution he was housed within 4 experienced numerous quarantine lockdowns, and he is an “[American with Disabilities Act] 5 inmate…” which has severely restricted him. Id. at 3. 6 On March 28, 2023, the Honorable Magistrate Judge Karen E. Scott deemed the better 7 forum for this petition was the district where Petitioner is confined rather than the district where 8 he was convicted and transferred this action to the Eastern District of California. (Doc. 5). 9 Discussion and Analysis 10 Petitioner Failed to Timely File the Petition Within the Statute of Limitations 11 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year 12 statute of limitations for the filing of a federal habeas petition. Under § 2244(d)(1), the 13 limitations period begins to run on “the date on which the factual predicate of the claim or claims 14 presented could have been discovered through the exercise of due diligence.” Petitioner identifies 15 September 9, 2021, as the day the Parole Board denied his petition for a review of the merits 16 (Doc. 1 at 2). Thus, the Court finds that the statute of limitations began to run on September 10, 17 2021. Petitioner had one year from September 10, 2021, until September 11, 2022, to file a 18 timely federal petition. The instant action is not timely unless Petitioner is entitled to statutory or 19 equitable tolling. 20 AEDPA’s statute of limitations is suspended for the time during which a “properly-filed” 21 application for post-conviction relief is pending in state court, i.e., statutory tolling. See 28 22 U.S.C. § 2244(d)(2). According to the petition, Petitioner did not start the state court review 23 process until he filed a petition in the Superior Court of Los Angeles County on January 19, 2023, 24 after the statute of limitations ran on September 11, 2022. (Doc. 1 at 11). For this reason, 25 Petitioner is not entitled to statutory tolling for the state habeas petition he filed on January 19, 26 2023. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (no statutory tolling if the 27 AEDPA time period expired before starting the state court review process). 1 limitations may be entitled to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). 2 To get the benefit of equitable tolling, a prisoner must show that he was diligently pursuing his 3 rights, but some extraordinary circumstance stood in his way and prevented timely filing. Id.; 4 Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). “A petitioner must show that his 5 untimeliness was caused by an external impediment and not by his own lack of diligence.” 6 Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007). “Indeed, the threshold 7 necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the 8 rule.” Miranda v. Castro, 292 F.3d 1-63, 1066 (9th Cir. 2002) (internal quotation marks and 9 citation omitted); Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 255 10 (2016). 11 Petitioner alleges the following circumstances entitle him to equitable tolling. Petitioner 12 claims he tested positive for COVID-19 in November 2021 and was placed in isolation. (Doc. 1 13 at 3). Petitioner notes for a “short period of time” the institution he was housed in was placed on 14 numerous quarantine lockdowns. Id. Petitioner also argues he is entitled to equitable tolling as 15 he is an [American with Disabilities Act] inmate…” and his advanced age, declining physical 16 abilities, and diminished cognitive abilities prevented him from filing a petition on time. Id. 17 Petitioner’s conclusory assertions fail to demonstrate how he was prevented from filing a 18 petition for over a year. Petitioner provides no specific facts that his isolation, health conditions, 19 or the institution prevented him from filing any habeas petition from September 2021 until 2023. 20 See Davis v. Kibler, No. 2:21-cv-07620-FMO-JDE, 2022 WL 2121907, at *6 (C.D. Cal. Feb. 24, 21 2022) (“a petitioner must allege specific facts showing how such COVID-19 related lockdowns 22 ‘actually prevented’ the petitioner from timely filing a petition.”) (citation omitted), R&R 23 adopted, 2022 WL 3012833 (C.D. Cal. May 31, 2022). Accordingly, the Court finds Petitioner 24 failed to carry his burden of demonstrating extraordinary circumstances for equitable tolling of 25 his petition, and consequently, the petition must be dismissed for being untimely. 26 Petitioner Failed to Exhaust Remedies 27 Petitioner’s habeas petition also fails to show he exhausted state judicial remedies. A 1 necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the 2 federal court or demonstrating that no state remedy remains available. Johnson v. Zenon, 88 F.3d 3 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); See e.g., Ybarra v. 4 McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (the Nevada Supreme Court did have an opportunity 5 to address petitioner’s venue claim, thus the claim had been exhausted). The state courts must be 6 presented with the specific federal constitutional guarantee at issue and a statement of the 7 operative facts that support the federal legal theory. Gentry v. Sinclair, 705 F.3d 884, 897, 901 8 (9th Cir. 2013). When none of a petitioner’s claims have been presented to the highest state court 9 as required, the Court must dismiss the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 10 Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 11 In this case, Petitioner has not brought forth his current claim before the Supreme Court of 12 California. Petitioner claims he has only requested collateral relief in the Superior Court of Los 13 Angeles County. (Doc. 1 at 11). Therefore, Petitioner’s petition must be dismissed as this Court 14 cannot consider an entirely unexhausted petition. Rose, 455 U.S. at 521-22. 15 Petitioner requests this Court stay and hold his petition in abeyance pursuant to Rhines v. 16 Weber, 544 U.S. 269 (2005). See (Doc. 1 at 2). Until recently, district courts routinely dismissed 17 habeas petitions that were wholly unexhausted at the time of filing. Rasberry v. 448 F.3d at 1154; 18 Jiminez, 276 F.3d at 481. However, the Ninth Circuit has clarified that unexhausted habeas 19 petitions may, under limited circumstances, be stayed pending exhaustion. Mena v. Long, 813 20 F.3d 907, 912 (9th Cir. 2016). The requirements as set forth in Rhines include: (1) the petitioner 21 had good cause for his failure to exhaust, (2) his unexhausted claims are potentially meritorious, 22 and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation 23 tactics.” Mena, 813 F.3d at 910 (quoting Rhines, 544 U.S. at 278). 24 As previously addressed, the Court finds Petitioner has failed to adequately demonstrate 25 why he delayed in seeking state and/or federal relief regarding his September 2021 parole 26 hearing. Further, it is not clear from the face of the petition whether Petitioner’s unexhausted 27 claims are potentially meritorious. 1 habeas corpus to a state prisoner ‘only on the grounds that he is in custody in violation of the 2 Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) 3 (per curiam) (quoting 28 U.S.C. § 2254(a)). A claim falls within the “core of habeas corpus” 4 when a prisoner challenges “the fact or duration of his confinement” and “seeks either immediate 5 release from that confinement or shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 6 489 (1973); Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). In contrast, if a favorable judgment for 7 the petitioner would not “necessarily lead to his immediate or earlier release from confinement,” 8 he may assert his claim only under 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 935 (9th 9 Cir. 2016) (en banc) (quoting Preiser, 411 U.S. at 487, and Skinner v. Switzer, 562 U.S. 521, 535 10 n.13 (2011)). 11 Here, Petitioner seeks to challenge the Parole Board’s decision to deny him parole. See 12 generally (Doc. 1). Petitioner claims the Parole Board deprived him of due process and equal 13 protection by being biased against him and failing to adhere to California law. Id. at 8-11. In 14 Swarthout v. Cooke, the Supreme Court held that federal habeas jurisdiction does not extend to 15 state parole decisions as long as minimum procedural protections are provided. 562 U.S. 216, 16 220-21 (2011). A federal court’s inquiry is limited to whether the prisoner was given the 17 opportunity to be heard and received a statement of the reasons why parole was denied. Id. at 18 221; Miller v. Oregon Bd. Of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 19 2011). 20 Petitioner notes he was granted a parole hearing in 2021. (Doc. 1 at 2). It appears 21 Petitioner attended the parole hearing as he was able to identify the presiding commissioner. Id. 22 at 8. Moreover, it appears Petitioner was provided a statement of reasons why his parole was 23 denied. See Id. at 9 (Petitioner argues the Parole Board’s findings are arbitrary and capricious as 24 they failed to articulate how he poses an unreasonable risk and threat to public safety). Thus, 25 Petitioner received all the process he was due. 26 Petitioner’s substantive challenges to the parole board’s decision that it did not follow 27 California law are not cognizable in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 1 Petitioner would not necessarily have received a favorable parole outcome. Under California law, 2 the parole board must consider all relevant reliable information in determining suitability for 3 parole, and “has the authority to deny parole on the basis of any grounds presently available to it.” 4 Nettles, 830 F.3d at 935 (citing Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)). Because 5 success on Petitioner's claims would not necessarily lead to his immediate or earlier release from 6 confinement, his claims do not fall within the core of habeas corpus and are not cognizable in 7 federal habeas corpus. Therefore, Petitioner’s request for a stay under Rhines shall be denied. 8 Sosa v. Warden of Corcoran State Prison, No. 1:21-cv-01094-HBK, 2022 WL 17156629, at *3 9 (E.D. Cal. Nov. 22, 2022) (collecting cases). 10 The claims raised in the petition may be cognizable if raised in a civil rights action. 11 Further, Petitioner’s claims would be timely under the applicable statute of limitations for 42 12 U.S.C.S. § 1983 actions. When a habeas petition “is amenable to conversion on its face, meaning 13 that it names the correct defendants and seeks the correct relief, the court may recharacterize the 14 petition so long as it warns the pro se litigant of the consequences of the conversion and provides 15 an opportunity for the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 16 936 (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). 17 Habeas actions and § 1983 prisoner civil right cases “differ in a variety of respects—such 18 as the proper defendant, filing fees, the means of collecting them, and restrictions on future 19 filings—that may make recharacterization impossible or, if possible, disadvantageous to the 20 prisoner compared to a dismissal without prejudice of his petition for habeas corpus.” Id. at 935- 21 36 (citations omitted); United States v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (courts should 22 not recharacterize a prisoner’s pro se filing as a federal habeas petition when doing so may be to 23 the prisoner’s disadvantage). For instance, the filing fee for a habeas petition is $5, and if leave to 24 proceed in forma pauperis is granted, as it has been here, the fee is forgiven. For civil rights 25 cases, however, the fee is $400, and under the Prison Litigation Reform Act the prisoner is 26 required to pay $350, even if granted in forma pauperis status, by way of deductions from the 27 income to the prisoner’s trust account. See 28 U.S.C. § 1915(b)(1). A prisoner who might be 1 otherwise forgo a civil rights complaint for which the fee would be deducted from income to his 2 or her account. Also, a civil rights complaint that is dismissed as malicious, frivolous, or for 3 failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is not true for 4 habeas cases. Based on these differences between habeas and civil rights cases, the Court will not 5 convert Petitioner’s habeas petition to a civil rights action. 6 Though the undersigned expresses no view regarding the merits of any such claim, 7 Petitioner may file a claim pursuant to 42 U.S.C. § 1983 based on the allegations contained in the 8 petition. 9 Conclusion and Order 10 For the reasons discussed, Petitioner’s habeas petition is untimely, unexhausted, and fails 11 to state a cognizable habeas claim. Further, Petitioner has failed to persuade this Court that his 12 petition should be stayed and held in abeyance. However, Petitioner will be granted an 13 opportunity to file a first amended habeas petition addressing the aforementioned deficiencies 14 and/or a 42 U.S.C. § 1983 civil rights action complaint. See Fed. R, Civ. P. 15(a) (leave to amend 15 shall be freely given when justice so requires). Accordingly, it is HEREBY ORDERED: 16 1. The Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITHOUT 17 PREJUDICE for failure to show the petition is within the applicable statute of 18 limitations, failure to show exhaustion, and failure to state a cognizable habeas claim; 19 2. Petitioner is GRANTED 30 days from the date of service of this order to file a first 20 amended petition as directed by this order; and 21 / / / 22 23 / / / 24 25 26 27 1 3. The Clerk of Court is DIRECTED to send Petitioner one blank copy of the form 2 complaint for 42 U.S.C. § 1983 civil rights action. 3 Petitioner is forewarned that failure to comply with this order may result in an order of 4 | dismissal or a recommendation that the petition be dismissed pursuant to Local Rule 110. 5 | IT IS SO ORDERED. ° | Dated: _ April 7, 2023 | hr 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28