Watkins v. Binkele ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Willie Louis Watkins, Case No.: 18-cv-2194-AJB-RBM 12 Petitioner, ORDER: 13 v. (1) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 12); 14 R.E. Binkele, (2) GRANTING RESPONDENT’S 15 Respondent. MOTION TO DISMISS, (Doc. No. 9); and 16 (3) DISMISSING PETITIONER’S 17 WRIT OF HABEAS CORPUS (Doc. No. 1) 18 19 Before the Court is Petitioner’s petition for Writ of Habeas Corpus. In the Report 20 and Recommendation (“R&R”) the Magistrate Judge recommended dismissing 21 Petitioner’s federal petition for writ of habeas corpus finding it was time-barred and his 22 claims were procedurally defaulted. Agreeing with the R&R, the Court ADOPTS the 23 R&R, GRANTS Respondent’s dismissal motion, and DISMISSES Petitioner’s writ of 24 habeas corpus. 25 I. BACKGROUND 26 Petitioner Willie Louis Watkins filed his Writ of Habeas Corpus under 28 U.S.C. 27 § 2254 challenging his underlying state court conviction on seven grounds. (Doc. No. 1 at 28 1, 12–18.) Respondent moved to dismiss Petitioner’s petition, arguing it is barred by the 1 statutes of limitations and that Petitioner’s claims are procedurally defaulted. (Doc. No. 9.) 2 The factual details of Petitioner’s case are detailed in the R&R, (Doc. No. 12 at 2–4), and 3 will only be referenced as necessary herein. 4 II. LEGAL STANDARD 5 The duties of the district court with respect to a magistrate’s judge’s R&R are set 6 forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). The district court 7 must “make a de novo determination of those portions of the report . . . to which objection 8 is made” and “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 10 States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617– 11 18 (9th Cir. 1989). As to portions of the report to which no objection is made, the Court 12 may assume the correctness of the magistrate judge’s findings of fact and decide the motion 13 on the applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); 14 Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such 15 circumstances, the Ninth Circuit has held that failure to file objections only relieves the 16 trial court of its burden to give de novo review to factual findings; conclusions of law must 17 still be reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). 18 III. DISCUSSION 19 The R&R found that “absent any applicable tolling, Petitioner had until October 20 12, 2011, to file his federal habeas petition.” (Doc. No. 12 at 6.) Here, Petitioner did not 21 file his Petition until September 16, 2018, nearly seven years after the statute of limitations 22 had run. (Id.) The R&R then went on to discuss whether Petitioner was entitled to the 23 tolling of the statute, such that his Petition could survive. (Id. at 6–9.) The R&R first found 24 that Petitioner was not entitled to statutory tolling. (Id. at 6–7.) A federal habeas petition 25 may be statutorily tolled when “a properly filed application for State post-conviction or 26 other collateral review with respect to the pertinent judgment or claim is pending. . . .” 27 28 U.S.C. § 2244(d)(2). The R&R found that Petitioner could not avail himself of statutory 28 tolling because he did not file his state court habeas petition until April 2, 2015—three and 1 a half years after the statute had run. (Doc. No. 12 at 6.) Petitioner filed a second state court 2 habeas petition in 2017, but the R&R found it met the same fate as the first. (Id. at 7.) 3 The Court next discussed whether Petitioner was entitled to equitable tolling. (Id.) 4 Equitable tolling is allowed when the Petitioner can establish: “(1) that he has been 5 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 6 way.” Pace v. DiGuglielmo, 554 U.S. 408, 418 (2005). The R&R found Petitioner “fail[ed] 7 to carry his burden of showing diligence in pursuing his rights or extraordinary 8 circumstances that prevented him from timely filing his petition.” (Doc. No. 12 at 8.) The 9 Magistrate Judge also stated that “Petitioner also fail[ed] to demonstrate that extraordinary 10 circumstances beyond his control prevented him from timely filing the instant petition.” 11 (Id.) Accordingly, the R&R concluded that Petitioner was not entitled to equitable tolling 12 of his claims and that “[h]is petition is untimely.” (Id. at 9.) 13 Finally, the R&R discussed whether Petitioner’s claims were procedurally defaulted. 14 (Id. at 9–13.) This doctrine bars federal habeas review “when a state court declines to 15 address a prisoner’s federal claims because the prisoner has failed to meet a state procedural 16 requirement.” Calderon v. U.S. District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) 17 (internal quotations omitted). Ultimately, the R&R reasoned that because Petitioner was 18 unable to show actual innocence or that a fundamental miscarriage of justice occurred, his 19 claims were procedurally defaulted. (Doc. No. 12 at 9–13.) The R&R concluded by 20 recommending this Court grant Respondent’s motion to dismiss and dismissing 21 Petitioner’s petition with prejudice as untimely. (Id. at 14.) 22 In Petitioner’s objection, he makes two brief arguments. (Doc. No. 13.) First, he 23 argues that under new authority, People v. Duenas, 30 Cal. App. 5th 1157 (2019), 24 “restitution is recognized and considered to be separate and additional punishment for a 25 crime.” (Id. at 1.) Thus, he contends “Double Jeopardy applies when there is both 26 restitution and prison term for the same offense. . . .” (Id.) Second, Petitioner asserts his 27 prison term was “unauthorized due to failure to impose a term of parole, which is a lawful 28 requirement of a prison sentence.” (Id. at 2.) 1 However, the Court finds that Petitioner has failed to properly object to the R&R’s 2 conclusions regarding the untimeliness of his claims or the fact the R&R found his claims 3 || were procedurally defaulted. Even if the Court wanted to get into the merits of his claims, 4 Court does not have jurisdiction over claims not properly before it. Thus, the Court has 5 ||no choice but tt OVERRULE Petitioner’s objections and agree with the R&R. 6 IV. CERTIFICATE OF APPEALABILITY 7 When a district court enters a final order adverse to the applicant in a habeas corpus 8 proceeding, it must either issue or deny a certificate of appealability, which is required to 9 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 10 of appealability is appropriate only where the petitioner makes “a substantial showing of 11 denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003) 12 (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that 13 “reasonable jurists could debate whether [] the petition should have been resolved in a 14 || different manner or that the issues presented were adequate to deserve encouragement to 15 |! proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citation and internal 16 quotation marks omitted). Here, the Court finds that reasonable jurists could not debate the 17 |) Court’s conclusion to dismiss with prejudice Petitioner’s claims and therefore DECLINES 18 || to issue a certificate of appealability. 19 V. CONCLUSION 20 For the reasons stated herein, the Court finds the R&R was well-reasoned, thorough, 21 || and contains no clear error. Thus, the Court ADOPTS the R&R in its entirety, (Doc. No. 22 12), GRANTS Respondent’s dismissal motion, (Doc. No. 9), and DISMISSES 23 || Petitioner’s federal petition for habeas corpus, (Doc. No. 1). The Court Clerk is 24 || DIRECTED to close the case. 25 IT IS SO ORDERED. 6 Dated: August 12, 2019 | ZS Zt □□□ 27 Hon. Anthony J.Battaglia 28 United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28