Opinion
5:21-01213 FWS (ADS)
09-20-2022
JOSE PEREZ RODRIGUEZ, Petitioner, v. GIGI MATTESON, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE AUTUMN D. SPAETH, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Fred W. Slaughter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. INTRODUCTION
Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) filed by Petitioner Jose Perez Rodriguez, a California state prisoner. Respondent filed a Motion to Dismiss the Petition on the grounds that the Petition is time-barred. Petitioner filed an opposition to the Motion to Dismiss after the issuance of the Report and Recommendation, during the objections period. (Dkt. Nos. 13-16.) A review of the Petition, the Motion to Dismiss, the Court's records, and public records reveals that the Petition is untimely and amendment cannot cure the deficiencies. For this reason, the Court recommends granting the Motion to Dismiss and dismissing the Petition with prejudice.
This Final R&R is issued to reflect that Petitioner filed an opposition. Because the recommendation and findings remain unchanged, the parties will not have an additional opportunity to file objections to the Final R&R.
Where necessary, the Court takes judicial notice of the public records. See Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”); Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (holding that a court may take judicial notice of undisputed matters of public record).
II. RELEVANT BACKGROUND
A. State Court Conviction and Habeas Petition
On May 31, 2018, Petitioner pled guilty to attempted murder and admitted to a gang enhancement and firearm discharge enhancement. (Dkt. No. 4-2 at 13-14, 20.) On the same day, Petitioner was sentenced to state prison for a total term of thirty-one years. (Id. at 13-14.) On June 11, 2018, Petitioner sent the Riverside County Superior Court (“Superior Court”) a letter requesting to withdraw his plea. (Id. at 17-18.) On June 20, 2018, the Superior Court provided a copy of Petitioner's letter to his counsel and the District Attorney and ordered “[n]o further action . . . taken except on [a] party's initiative.” (Id. at 20.) The record reflects that Petitioner's counsel did not file a motion to withdraw the plea. (Dkt. No. 9-1 at 3.)
On May 10, 2020, Petitioner constructively filed a petition for writ of habeas corpus in the Superior Court asserting, among others, ineffective assistance of trial counsel for failing to respond to the Superior Court's notification of Petitioner's request to withdraw his plea. (Id.) The Superior Court denied the petition on June 18, 2020 based on Petitioner's failure to state a prima facie case for habeas relief. (Dkt. No. 4-2 at 27-31.)
On December 4, 2020, Petitioner constructively filed a petition for writ of habeas corpus in the California Court of Appeal (“Court of Appeal”). (Dkt. No. 9-2.) The Court of Appeal denied the petition for writ of habeas corpus without comment on January 21, 2021. (Dkt. No. 4-3 at 9.) On February 2, 2021, Petitioner filed a petition for rehearing, which the Court of Appeal denied for lack of jurisdiction. (Id. at 12-14, 16.) Finally, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on March 1, 2021. (Id. at 18-23.) The California Supreme Court summarily denied that petition on June 9, 2021. (Id. at 25.)
B. Federal Court Habeas Proceedings
Petitioner constructively filed the instant federal habeas Petition on July 1, 2021. (Dkt. No. 1.) In the Petition, Petitioner raises one ground for relief, arguing that his trial counsel rendered ineffective assistance of counsel in advising Petitioner to enter a plea. (Id. at 12-17.)
On September 29, 2021, Respondent moved to dismiss the Petition on the basis that it is barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d) (“Motion to Dismiss”). (Dkt. No. 8.) Respondent argues that Petitioner's conviction became final on July 30, 2018, when the time to appeal the conviction expired. (Id. at 5.) Respondent also argues the statute of limitations expired before Petitioner filed his first state habeas petition on May 10, 2020 and thus his subsequent petitions had no statutory tolling effect. (Id.) Respondent therefore moves the Court to dismiss the Petition as untimely. (Id. at 6.)
Petitioner's opposition to the Motion to Dismiss, if any, was due by no later than October 19, 2021. (Dkt. No. 4.) Petitioner did not file an opposition to the Motion to Dismiss until after the issuance of the Report and Recommendation, during the objections period. (Dkt. Nos. 13-16.) Respondent's Motion to Dismiss is ready for decision.
See supra note 1.
III. THE PETITION IS UNTIMELY
A. The Petition Is Facially Untimely
The Petition is facially untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA establishes a one-year limitation period for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1); see also Wall v. Kholi, 562 U.S. 545, 550 (2011); Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). Pursuant to 28 U.S.C. § 2244(d)(1), the AEDPA limitation period begins to 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.
At its most basic level, as is the case here, the limitation period begins to run “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For petitioners who do not appeal their judgment of conviction, the judgment becomes final “on the date that the time for seeking such review expires.” Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). In California, an individual has sixty days to seek direct review by the Court of Appeal. See Cal. R. Ct. 8.308. Consequently, when a conviction is not appealed through direct review, the one-year AEDPA statute of limitations begins to run on the date that the sixty-day period for direct review expires. See Gonzalez, 565 U.S. at 137.
Here, Petitioner was sentenced on May 31, 2018. (Dkt. No. 4-2 at 13-14, 20.) The sixty-day period during which Petitioner could file an appeal with the Court of Appeal expired on July 30, 2018. Although Petitioner indicated in his Petition that he appealed his conviction to the Court of Appeal, he failed to cite the relevant case information. (Dkt. No. 1 at 2.) Thus, Petitioner has not established, and the Court has not found, any evidence that he appealed his conviction to the Court of Appeal or California Supreme Court. Therefore, Petitioner's conviction and judgment became final on July 30, 2018, and the one-year AEDPA statute of limitations, without tolling, expired on July 30, 2019. Petitioner filed his state court habeas petition on May 10, 2020, almost one year after the AEDPA limitation period expired. He filed the instant federal habeas Petition on July 1, 2021, almost two years after the AEDPA limitation period expired. As a result, the Petition is facially untimely unless Petitioner establishes tolling or some other commencement date is appropriate.
This Final R&R is issued to also correct a scrivener's error regarding the state habeas petition date in the original R&R. Because the recommendation and findings remain unchanged, the parties will not have an additional opportunity to file objections to the Final R&R.
B. Petitioner Is Not Entitled to Delayed Accrual of Limitations
From the face of the Petition, Petitioner does not have any basis for contending that he is entitled to a later commencement date for the statute of limitations. First, Petitioner does not assert that he was impeded from filing his federal petition by unconstitutional state action. See 28 U.S.C. § 2244(d)(1)(B). Second, his claims are not based on a federal constitutional right that was newly recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner has been long aware of the underlying factual predicates of his claim since was he was sentenced in May 2018 and sought to withdraw his plea in June 2018. See 28 U.S.C. § 2244(d)(1)(D); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (noting that the limitation period under § 2244(d)(1)(D) begins running when petitioner knew of facts underlying the claims, not when he realized their “legal significance”). Petitioner is thus not entitled to a later trigger date under 28 U.S.C. § 2244(d)(1).
C. Statutory and Equitable Tolling Do Not Render the Petition Timely
In certain cases, a habeas petition can “be timely, even if filed after the one-year time period has expired, when statutory or equitable tolling applies.” Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). The burden of demonstrating that the one-year limitations period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, e.g., Pace v. DiGulielmo, 544 U.S. 408, 418 (2005); Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). For the reasons discussed below, the Court concludes that Petitioner has not met his burden of demonstrating that the one-year limitations period was tolled to render the Petition timely.
1. Statutory Tolling
AEDPA provides for statutory tolling while a state habeas petition is pending as well as during the reasonable time between a lower court's judgment and the filing of an appeal in the next court. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-21 (2002); see, e.g., Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (holding that a 91-day delay was “far longer than the Supreme Court's thirty-to-sixty-day benchmark for California's ‘reasonable time' requirement.”).
Here, Petitioner is not entitled to statutory tolling. Petitioner did not file his first state habeas petition until May 10, 2020, approximately nine months after the AEDPA statute of limitations expired on July 30, 2019. Moreover, to the extent that Petitioner claims that his petition for rehearing of the Court of Appeal's denial of his petition for writ of habeas corpus tolls the statute of limitations, this argument also fails. (Dkt. No. 1 at 10.) Petitioner filed a petition for rehearing on February 2, 2021, after the statute of limitations expired. (Dkt. No. 4-3 at 12-14.) Statutory tolling “does not permit the reinitiation of the limitations period that has ended before the state petition was filed.” Ferguson v. Pamateer, 321 F.3d 820, 823 (9th Cir. 2003). As such, statutory tolling does not render the instant Petition timely.
2. Equitable Tolling
Equitable tolling applies when a petitioner shows “(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (“The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.”) (internal quotations and citations omitted). The untimeliness could not be a result of “oversight, miscalculation or negligence on the petitioner's part.” Walderon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (internal quotations and citations omitted).
Petitioner fails to establish that he is entitled to equitable tolling. The Petition does not contain any statements to explain or justify the late filing. To the extent Petitioner argues that the Covid-19 pandemic preventing him from filing the Petition, it does not warrant equitable tolling because the pandemic restrictions occurred after the statute of limitations expired. (Dkt. No. 1 at 10); see Ferguson, 321 F.3d at 823. Petitioner has not met his burden to establish that he is entitled to equitable tolling and therefore, the instant Petition is untimely.
IV. APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING
In the Petition, Petitioner requests an evidentiary hearing and appointment of counsel. (Dkt. No. 1 at 11.) The Sixth Amendment right to counsel does not apply to habeas corpus actions. For this reason, prisoners who apply for habeas relief are not entitled to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). The Court does, however, have discretion to appoint counsel in appropriate cases. See 18 U.S.C. § 3006A; 28 U.S.C. § 2254(h); see also Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986). Generally, the Court limits the exercise of this discretion to exceptional circumstances, e.g., where the Court finds it necessary to hold an evidentiary hearing. See Roe v. Coursey, 469 Fed.Appx. 622, 624 (9th Cir. 2012).
The Court does not find a need for an evidentiary hearing and, thus, there is no need for appointed counsel. See Knaubert, 791 F.2d at 729-30 (finding district court did not abuse its discretion by declining to appoint habeas counsel where no evidentiary hearing was necessary). The request for an evidentiary hearing should be denied because Petitioner has failed to demonstrate the state record received and reviewed by the Court is insufficient to resolve the claims. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that federal court's habeas review ordinarily “is limited to the record that was before the state court that adjudicated the claim on the merits”); Schrirro v. Landrigan, 550 U.S. 465, 474 (2007).
V. CERTIFICATE OF APPEALABILITY
The Court finds that Petitioner has not shown that “jurists of reason would find it debatable whether:” (1) “the petition states a valid claim of the denial of a constitutional right;” and (2) “the district court was correct in its procedural ruling.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, it is recommended that a certificate of appealability be denied.
VI. RECOMMENDATION
It is recommended that the Court issue an Order, as follows: (1) approving and accepting this Report and Recommendation; (2) granting Respondent's Motion to Dismiss the Petition; (3) directing that Judgment be entered dismissing this action with prejudice; and (4) denying a certificate of appealability.