Opinion
Civil No. 05cv175-IEG (LSP).
October 31, 2005
On January 28, 2005, Arath Blanco ("petitioner"), a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. (Doc. No. 1). Petitioner argues that his conviction violated the 5th, 6th and 14th Amendments. Id. The matter was referred to United States Magistrate Judge Leo S. Papas pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Papas has issued a Report and Recommendation ("Report") recommending that the Court dismiss petitioner's § 2254 petition as an unauthorized successive petition in violation of section 2244(b) and deny petitioner's petition as untimely under section 2244(d). Petitioner has filed objections to Magistrate Judge Papas' Report. For the reasons stated below, the Court: (1) rejects Magistrate Judge Papas' recommendation that petitioner's application is successive; (2) rejects the recommendation that petitioner's application is untimely; (3) adopts the recommendation that petitioner's second, fourth and eighth claims lack merit and (4) remands petitioner's § 2254 petition to the magistrate judge for consideration on the merits of petitioner's first, third, fifth, sixth and seventh claims.
BACKGROUND
A. Procedural Background
On December 31, 1997, a jury convicted petitioner of first degree murder, assault with force likely to produce great bodily injury and robbery. As to the charge of first degree murder, the jury found true a robbery-murder special circumstance allegation. As to the charge of assault, the jury found true a personal infliction of great bodily injury allegation. (Respondent's Lodgement No. 1 at 1-4, 1408, 1413-1416).
On April 17, 1998, petitioner received a life imprisonment sentence without the possibility of parole. Petitioner received a concurrent term of three years imprisonment on the assault conviction and an added concurrent term of three years imprisonment on the great bodily injury enhancement. The sentencing court stayed the robbery conviction sentence. (Respondent's Lodgment No. 1 at 1743-1744).
Petitioner appealed the judgment. On April 30, 2001, the California Court of Appeal affirmed the judgment. (Respondent's Lodgment No. 2). Petitioner appealed to the California Supreme Court. On August 8, 2001, that Court denied the petition for review.
On February 28, 2002, petitioner filed a petition for writ of habeas corpus in the Southern District of California. (Case No. 02cv0394) (Respondent's Lodgment No. 6). On March 20, 2002, the court dismissed the petition without prejudice for failure to state a federally cognizable constitutional claim. (Respondent's Lodgment No. 7). On April 5, 2002, petitioner filed a first amended petition in the Southern District.
On September 30, 2002, a person purporting to be an attorney, David Goldstein, filed a Notice of Substitution of Attorney, notifying the court that he was substituting in as retained counsel for petitioner.
In early 2003, the FBI informed petitioner that David Goldstein was not an attorney and that Goldstein had defrauded dozens of people by posing as an attorney. (Respondent's Lodgment No. 16).
On February 14, 2003, Judge Miller dismissed the first amended petition for writ of habeas corpus without prejudice. (Respondent's Lodgment No. 15).
On November 5, 2003, petitioner filed a petition for writ of habeas corpus in San Diego Superior Court that the court denied on the merits. (Respondent's Lodgement No. 16). On January 7, 2004, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal that the court denied. (Respondent's Lodgment No. 18). On March 12, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court that the court denied on January 19, 2005. (Respondent's Lodgment No. 21).
On January 28, 2005, petitioner filed the present application for writ of habeas corpus in this Court.
DISCUSSION
A. The Magistrate Judge's Report
The Magistrate Judge recommends dismissal of this application as an unauthorized successive petition in violation of 28 U.S.C. § 2244(b) of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Alternatively, the Magistrate Judge recommends denying petitioner's petition as untimely under 28 U.S.C. § 2244(d). The Court rejects the first recommendation because the present petition is not a "successive" petition within the meaning of section 2244(b). The Court rejects the second recommendation because it finds the fraud committed by Mr. Goldstein upon petitioner is sufficient to toll the statute so that the petition is timely.
1. Successive Petition
The Magistrate Judge found that the present petition is a "second or successive" petition because on February 28, 2002, petitioner filed a petition for writ of habeas corpus in the Southern District of California that the Court dismissed without prejudice for failure to state a federal claim. (Report, 4). If this Court finds the present petition to be "second or successive," it must be dismissed because petitioner did not apply to the Ninth Circuit for authorization as required by section 2244 (b)(3). However, for the following reasons, the Court finds that the present petition is not "second or successive."
28 U.S.C. § 2244(b) states in pertinent part:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
AEDPA does not define the terms "second or successive." Hill v. Alaska, 297 F.3d 895, 897 (9th Cir. 2002). "That a prisoner has previously filed a federal habeas petition does not necessarily render a subsequent petition `second or successive.'"Id. at 898. Rather, the phrase "is a term of art given substance in . . . prior habeas corpus cases." Slack v. McDaniel, 529 U.S. 473, 486 (2000); see Barapind v. Reno, 225 F.3d 1100, 1111-12 (9th Cir. 2000) (stating that not all "multiple collateral attacks [are] `second or successive'" and discussing the case law). According to Rule 9(b) of the Rules Governing Habeas Corpus Cases under Section 2254, a petition is "second or successive" only if its claims were raised in a prior petition and were determined on the merits.
In the present case, petitioner's federal claims were never adjudicated on the merits. Petitioner's first federal application for writ of habeas corpus, filed on February 28, 2002, contained exclusively state claims and the district court dismissed for that reason, never reaching the merits of petitioner's federal claims. In recommending dismissal, the magistrate judge evaluating the prior petition specifically noted that the "entire state court record" was not before the court, raising the possibility that petitioner had a valid claim that the district court could not evaluate at that time. (Report/02cv394, 2). It was partially for this reason that the magistrate judge recommended dismissal without prejudice as opposed to dismissal with prejudice. Id. Indeed, the magistrate judge contemplated the possibility that petitioner would exhaust his remedies in state court before returning to federal court to renew his application for writ of habeas corpus. Id. The district court adopted the magistrate judge's report on February 14, 2003. (Order Adopting Report and Recommendation/02cv394).
Since the court hearing petitioner's first application for writ of habeas corpus did not reach the merits of the case, the present petition is not "second or successive" within the meaning of 28 U.S.C. § 2244(b).
2. Statute of Limitations
The Magistrate Judge recommends denial of petitioner's application as untimely under 28 U.S.C. § 2244(d), which provides for a one-year limitation period for state prisoners to file habeas corpus petitions in federal court. The Court rejects this recommendation because it finds the fraud perpetrated on petitioner by David Goldstein, who pretended to represent petitioner despite not being a lawyer, suffices to toll the statute so that petitioner's application is timely.
Section 2244(d) states in pertinent part:
(1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Absent equitable tolling, petitioner's application would be untimely. Applying section 2244(d), the statute of limitations would run one year from the conclusion of direct review, ninety days after the California Supreme Court denied petitioner's appeal, which would be November 7, 2001. See Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Petitioner did not file his habeas corpus petition in state court, which would toll the statute of limitations, until November 5, 2003, almost a full year after the statute of limitations had run.
However, the Court finds that extraordinary circumstances warrant equitable tolling from September 30, 2002 until November 5, 2003 and, therefore, petitioner's application is timely. A district court may toll AEDPA's one year statute of limitations where "extraordinary circumstances" beyond a prisoner's control make it impossible to file a petition on time. Calderon v. United States Dist. Court for the Cen. Dist. of Cal., 128 F.3d 1283, 1288 (9th Cir. 1997). Egregious conduct by an attorney can qualify as an "extraordinary circumstance" warranting tolling.Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003). As the Magistrate Judge recognized, such circumstances are present in this case. On September 30, 2002, David Goldstein, purporting to be a lawyer, substituted in as petitioner's counsel. (Report and Recommendation, 22). Petitioner did not learn of Goldstein's fraudulent qualifications until early 2003. (Respondent's Lodgment No. 6). In addition to the obvious problems caused by this fraud, petitioner also suffered from a dearth of information regarding his case filed in the Southern District of California because the court mailed documents to Goldstein. It is unclear when petitioner finally learned of the disposition of his first action in the this Court. For these reasons, the Court agrees with the Magistrate Judge's recommendation to toll the statute of limitations from September 30, 2002 until November 5, 2003, the date petitioner filed his application for writ of habeas corpus in state court.
Tolling the statute from September 30, 2002 until November 5, 2003 makes petitioner's application timely. Petitioner's state application for writ of habeas corpus tolled the statute of limitations from November 5, 2003 until January 19, 2005, the date that the California Supreme Court denied the petition. Nine days later, petitioner filed in this Court. Thus, the statute of limitations only ran from November 7, 2001 to September 30, 2002 and from January 19, 2005 to January 28, 2005, the date petitioner filed his petition in this court. As this analysis indicates, a year did not run on petitioner's claim.
3. The Merits of Claims 2, 4 and 8
The Magistrate Judge's report follows the above analysis. However, the Magistrate Judge found that petitioner's petition was untimely because the Magistrate Judge added in the one-hundred and ninety days between the time petitioner filed his petition in this Court and August, 5, 2005. Thus, the Magistrate Judge found that five-hundred and seventeen days had run on petitioner's petition. The Court does not agree with this portion of the Magistrate Judge's analysis.
The Report and Recommendation addressed the merits of petitioner's second, fourth and eighth claims and the Court adopts the magistrate judge's recommendations.
The Magistrate Judge's Report correctly sets forth the proper scope of review for disposition of the instant petition. The Court may grant petitioner's section 2254 petition only if the Court determines that the California Court of Appeal decided petitioner's appeal in a manner that was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).
In this case, the California Supreme Court rejected petitioner's petition for review without any analysis or citation of authority. Accordingly, this Court must look to the decision of the California Court of Appeal to determine whether the final "reasoned state judgment" is contrary to, or unreasonably applies U.S. Supreme Court law. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). As mentioned above, this Court reviews de novo the Magistrate Judge's Report.
Claim 2
The Court agrees with the magistrate judge that petitioner's second claim is without merit.
Petitioner argues that the jury instruction stating that "if the crimes charged were committed by anyone, the witness Gabriel Uribe was an accomplice as a matter of law" violates his Fourteenth Amendment rights because it requires jurors to accept as fact that Uribe and one or more people committed any crimes. According to petitioner, this instruction imposed a mandatory presumption that "both alone and in the context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts," foreclosing "independent jury consideration of whether the facts proved establish certain elements of [the charged offense]" and relieving "the State of its burden of . . . proving by evidence every essential element of [the] crime beyond a reasonable doubt." Powell v. Galaza, 328 F.3d 558, 563 (9th Cir., 2003).
Powell does not condemn the complained of jury instruction.Powell involved a jury instruction that required jurors to find that an element of the crime had been satisfied. By contrast, the complained of jury instructions did not require jurors to find anything regarding petitioner's guilt. By its own terms, the jury instructions required jurors to make a full and independent determination of petitioner's guilt; the jury instructions only applied if the jury found that the crimes charged were committed. Thus, the jury instruction was clearly not contrary to or an unreasonable application of the constitutional rule enunciated in Powell. Claim 4
The Court agrees with the magistrate judge that petitioner's fourth claim lacks merit.
Petitioner argues that the following jury instruction violates his 5th, 6th and 14th Amendment rights:
The fact that Gabriel Uribe has entered into a plea agreement of guilty cannot be considered by you as evidence of the guilt of any other person. Also, the fact that the District Attorney's Office entered into an agreement with Gabriel Uribe, a former defendant, has no bearing on the guilt or innocence of any other defendant and you must not draw any inferences therefrom. (Respondent's Lodgment, No. 3 at 5305)
Petitioner argues that the above instruction violated his rights because the jurors could have interpreted the phrase "you must not draw any inferences therefrom" to preclude consideration of Uribe's credibility. Petitioner alleges that Uribe was a crucial witness for the prosecution. (Objection, 6.)
The Supreme Court in Boyde v. California laid out the test for evaluating an allegedly ambiguous jury instruction: to determine whether there is constitutional error, a court asks "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U.S. 370, 380 (1990). A defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction. Id.
The complained of jury instruction does not meet this standard. While the jury instruction is somewhat ambiguous, the jury instruction, as a whole, appears to address the guilt or innocence of individuals other than Uribe rather than preclude consideration of Uribe's motives. Given the instruction's frequent references to others' innocence or guilt, it seems unlikely that jurors interepreted the last phrase of the instruction as a blanket bar against drawing any inferences from Uribe's plea agreement. Bolstering this Court's analysis is the finding of the San Diego Superior Court that accompanying jury instructions cured whatever defects were present in the complained of instruction. (Respondent's Lodgement No. 17.) Additionally, the San Diego Superior Court found that defendant's counsel made ample efforts to discredit Uribe's testimony by referencing the plea agreement. Id. Claim 8
The Court agrees with the magistrate judge that this claim lacks merit.
Petitioner complains that the trial court's refusal to grant him a separate trial violated his 14th Amendment due process rights because the joint trial prevented petitioner from presenting exculpatory evidence and because the joint trial allegedly subjected petitioner to prejudicial gang associations when witnesses referred to petitioner's co-defendants by their gang monikers. The specific exculpatory evidence excluded was petitioner's surreptitiously recorded statement to Uribe that "Like a fucking kangaroo, he beat the shit out of that fool." Petitioner argues that Uribe's failure to contradict petitioner's statement at the time it was made undercut Uribe's testimony that petitioner kicked Juan Avitia to death. (Objection, 9.)
Misjoinder rises to the level of a constitutional violation "only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." U.S. v. Lane, 474 U.S. 438, 446 (1986). Neither of petitioner's allegations meet this burden. Excluding petitioner's statement did not prevent petitioner from presenting other evidence at trial, including petitioner's direct testimony, to the effect that someone else kicked Juan Avitia to death. While Uribe's failure to contradict petitioner's statement at the time it was made may have had some impeachment value, it is not so great that exclusion of the exchange amounts to a denial of a fair trial. The Court is buttressed in this finding by the state court of appeal's conclusion that substantial evidence demonstrated that petitioner was, in fact, the most active participant in the assault on Juan Avitia. (Respondent's Lodgement, No. 2.) As to petitioner's allegation of prejudicial association with gangs, petitioner has presented no evidence that if the state trial court had granted petitioner a separate trial, witnesses would have refrained from referring to petitioner's codefendants by their gang monikers.
CONCLUSION
The Court FINDS that petitioner's application is not "second or successive" within the meaning of 28 U.S.C. § 2244(b) and FINDS that petitioner's application is timely. Accordingly, the Court REJECTS this portion of the Magistrate Judge's Report and Recommendation. The Court FINDS that petitioner's second, fourth and eighth claims lack merit and adopts this portion for the Magistrate Judge's Report and Recommendation. Finally, the Court REMANDS this petition for consideration on the merits of claims 1, 3, 5, 6 and 7.
IT IS SO ORDERED.