Opinion
Civil No. 05cv1000 L (PCL).
November 18, 2005
REPORT AND RECOMMENDATION RE MOTION TO DISMISS PETITION FOR HABEAS CORPUS
Jose Maris Alvarez ("Alvarez"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). He challenges his San Diego Superior Court conviction in case number SCD131556. Respondent has filed a motion to dismiss. After a review of the Petition, Respondent's motion to dismiss, and all supporting documents, this Court recommends Respondent's motion to dismiss be GRANTED. I. PROCEDURAL HISTORY
On March 6, 1998, Alvarez was convicted of first degree burglary (Cal. Penal Code § 459), forcible lewd act upon a child (Cal. Penal Code § 288(b)) and assault by means likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)). ( See Resp't Ex. 1 at 18.) Alvarez was sentenced to 25 years to life. ( Id. at 87.)
Alvarez appealed his conviction to the California Court of Appeal. On May 24, 2000, the appellate court reversed Alvarez's forcible lewd act conviction. (Resp't Ex. 2 at 154.) The court concluded that the trial court had prejudicially erred by not sua sponte instructing the jury on the corpus delicti rule. ( Id. at 155.)
Under this common law rule, the prosecution must prove the corpus delicti — the body of the crime itself. Traditionally, in California, the prosecution could not satisfy this burden by relying exclusively upon extrajudicial statements, confessions, or admissions of the defendant. See People v. Ochoa, 19 Cal.4th 353, 404 (1998); People v. Jones, 17 Cal.4th 279, 301 (1998).
The California Supreme Court granted the state's petition for review and, on May 23, 2002, reversed the judgment of the court of appeal to the extent that it had overturned Alvarez's forcible lewd act conviction. ( See Resp't Ex. 2 at 109-135; see also People v. Alvarez, 27 Cal. 4th 1161 (2002).) The court held that although the jury should have been instructed that Alvarez's own statements could not be the sole evidence against him, the error was harmless because there was sufficient evidence other than Alvarez's statements to show he possessed the requisite intent. (Resp't Ex. 2 at 133-34; see also People v. Alvarez, 27 Cal. 4th at 1181-82.
The California Supreme Court denied Alvarez's petition for rehearing and issued its remittitur on July 10, 2002. (Resp't Ex. 2 at 107.) The court of appeal issued its remittitur on July 16, 2002. ( Id. at 109.)
Although the California Supreme Court had reinstated Alvarez's lewd conduct conviction, upon receiving the remittitur, the San Diego Superior Court clerk appointed counsel for Alvarez ( Id. at 99) and calendared several hearings. ( Id. at 100-01.) It was not until January 24, 2003 that the trial court denied Alvarez's requests for new trial or resentencing. ( See Resp't Ex. 3 at 178-82.)
Although it is not entirely clear from the record, it appears the Superior Court Clerk erroneously relied upon the Court of Appeal's opinion reversing that conviction, instead of the Supreme Court's decision reinstating the conviction. ( See Resp't Ex. 2 at 103.)
Alvarez filed a notice of appeal from the judgment of January 24, 2003. On appeal, Alvarez's counsel filed a no-merit brief pursuant to People v. Wende, 25 Cal. 3d 436, 441-42 (1979). (Resp't Ex. 3.) Alvarez did not accept the appellate court's invitation to file his own briefing. On December 15, 2003, the Court of Appeal affirmed Alvarez's conviction in an unpublished opinion. ( Id. at Ex. 5.) Alvarez did not seek review of this decision in the California Supreme Court.
Alvarez filed a federal petition for writ of habeas corpus in the United States District Court for the Central District of California on April 22, 2005. The case was transferred to this Court on April 29, 2005. Alvarez filed an amended petition on June 13, 2005.
On August 18, 2005, Respondent filed a motion to dismiss the amended petition, arguing the petition is barred by the statute of limitations, fails to present a cognizable federal claim, and that Alvarez failed to exhaust state judicial remedies. Alvarez has not filed an opposition.
II. STATUTE OF LIMITATIONS
Respondent argues Alvarez's petition must be dismissed because it was filed after the statute of limitations expired. Under the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner seeking federal habeas review, must file his federal petition within one year after his state conviction becomes "final." 28 U.S.C. § 2244(d)(1)(A). The one year limitation period begins running on the date the state "judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. "Direct review" includes the ninety-day period within which a petitioner can file a petition for writ of certiorari to the United States Supreme Court, regardless of whether the petitioner actually seeks such review. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Respondent contends Alvarez's conviction became final on October, 8, 2002 — ninety days after July 10, 2002 — when the California Supreme Court denied Alvarez's petition for rehearing and issued its remittitur. (Resp't Ans. at 6 (citing Bowen, 188 F.3d at 1158-59).)
This is a somewhat unique case because the proceedings did not end when the California Supreme Court reinstated Alvarez's lewd conduct conviction. Instead, the case was returned to the superior court, where counsel was appointed for Alvarez and several hearings were scheduled. ( See Resp't Ex. 2 at 96-102.) Ultimately the trial court denied Alvarez's motions for a new trial and resentencing on January 24, 2003. On that same day, Alvarez filed a notice of appeal. The court of appeal affirmed the judgment on December 15, 2003. (Resp't Ex. 5.)
Respondent contends that the proceedings in the San Diego Superior Court and California Court of Appeal, which occurred after the California Supreme Court's decision, were conducted without jurisdiction and therefore did not delay the finality of Alvarez's conviction. ( See Resp't Answer at 6.) However, neither the superior court, nor the court of appeal indicated that there was no jurisdiction to consider Alvarez's motions or appeal. ( See Resp't Ex. 3 at 179-80 Ex. 5.) Because proceedings related to the review of his conviction were ongoing, it is arguable that Alvarez's conviction did not become final until January 24, 2004 — forty days after the court of appeal affirmed the judgment. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002) (concluding that when no petition for review is filed in the California Supreme Court following direct review, the judgment becomes final the next day which is not a holiday forty days after the appellate court files its opinion).
Nonetheless, it is not necessary to decide whether the conviction became final on October 8, 2002, or on January 25, 2004, because even assuming Alvarez's conviction became final on the later date, his federal petition is still barred by AEDPA's statute of limitations. Giving Alvarez the benefit of the later date, the statute of limitations began running on January 25, 2004 — giving him until January 25, 2005 to file a federal petition. Alvarez did not file his petition until April 22, 2005. Thus, Alvarez's petition was filed at least 87 days after the statute of limitations had expired.
Neither statutory nor equitable tolling or the statute of limitation extend the deadline for filing in this case. The statute of limitations may be statutorily tolled while a "properly filed" collateral petition is "pending" in state courts. See 28 U.S.C. § 2244(d)(2). Here, however, Alvarez did not file any petitions for collateral review of his conviction in state court. Thus, the statute of limitations is not subject to statutory tolling.
Moreover, equitable tolling does not help Alvarez. The one-year statute of limitations may be subject to equitable tolling when "`extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998)) (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)). Here, Alvarez has not suggested any reason, much less "extraordinary circumstances" beyond his control, for failing to file his petition within a year of the denial of his second appeal. Therefore, equitable tolling does not apply.
If Alvarez's conviction were deemed "final" on October 8, 2002, as Respondent argues, Alvarez would likely be entitled to equitable tolling during the time the state trial court was conducting hearings on the apparent belief that Alvarez's lewd act conviction had been reversed. The state court's appointment counsel for Alvarez and scheduling of hearings could reasonably be considered to constitute "extraordinary circumstances beyond [Alvarez's] control." See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Again, however, it is not necessary to decide this issue because even giving Alvarez the benefit of the doubt, his petition is barred by the statute of limitations.
Accordingly, the Court finds the petition is untimely and recommends Respondent's motion to dismiss the petition as barred by the statute of limitation be GRANTED. III. FAILURE TO STATE A COGNIZABLE CLAIM
Respondent also argues that Alvarez has failed to state a cognizable claim on federal habeas. (Resp't Ans. at 7.) To present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas relief is not available for an alleged error in the interpretation or application of state law. Id. at 67-68.
Respondent argues that Alvarez's single claim, which concerns California's corpus delicti rule, raises only an issue of state law. (Ans. at 7.) However, Alvarez claims his federal due process right to a fair trial was violated by abrogation of California's corpus delicti rule. (Pet. at 6-9.) Thus, Alvarez alleges a "violation of the Constitution, laws or treaties of the United States." See Estelle, 502 at 68. Accordingly, Alvarez raises a cognizable claim on federal habeas.
IV. EXHAUSTION OF STATE JUDICIAL REMEDIES
Respondent further argues that Alvarez failed to exhaust state judicial remedies as to the single claim presented in his petition. The exhaustion of available state judicial remedies is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). As a matter of federal-state comity, federal courts generally do not consider a claim in a habeas corpus proceeding until the state courts have had an opportunity to act upon the claim. Rose, 455 U.S. at 515. To satisfy the exhaustion requirement a petitioner must first provide the state courts with a "`fair opportunity' to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)).
In his petition, Alvarez argues that his federal due process rights were violated by the trial court's failure to instruct the jury as to California's corpus delicti rule. (Pet. at 6-9.) Alvarez raised a similar claim to the California Supreme Court, however, he failed to present the federal aspect of the claim to the state court. Instead, the claim was presented to the state courts as purely a question of state law — specifically, whether California's corpus delicti rules was abrogated by Proposition 8. ( See Resp't Ex. 6 at 213-14.) Nowhere in his petition to the California Supreme Court did Alvarez assert that his federal rights were violated by any purported failure to instruct. ( See generally, Resp't Ex. 6.) Thus, Alvarez did not present the state supreme court with "fair opportunity" to consider his due process claim. See Anderson, 459 U.S. at 6.
If Alvarez were to attempt to raise his due process claim before the California courts, it may be deemed timebarred. In that case, "it is possible that the claim is exhausted because it is procedurally barred." See Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001)). However, given the complexity of California's procedural rules, this Court cannot say with any certainty whether the California courts would bar the claim. See generally Cassett v. Stewart, 406 F.3d 614, 622-23 (9th Cir. 2005) (declining to decide whether claim would be procedurally barred under Arizona state law) (citing Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (`Principles of comity and federalism counsel against substituting our judgment for that of the state courts. . . ."). Accordingly, the Court finds the claim is unexhausted. Thus, the Court recommends Respondent's motion to dismiss for failure to exhaust be GRANTED. V. CONCLUSION AND RECOMMENDATION
Respondent also appears to contend this claim is procedurally defaulted, though Respondent fails to develop this argument. (Resp't Ans. at 8-9.) Given the Court's determination that the petition is barred by the statue of limitations and unexhausted, the Court need not address this contention.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order GRANTING Respondent's motion to dismiss. IT IS ORDERED that no later than December 16, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than December 30, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).