Lee v. Gastelo

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JOHN HENRY LEE, Case No. 20-cv-05387-WHO (PR) Petitioner, — 8 — ORDER OF DISMISSAL v. — 9 — Dkt. Nos. 19 and 24 10 JOSIE GASTELO, Respondent. — 11 — — 12 — 13 INTRODUCTION 14 Petitioner John Henry Lee seeks federal habeas relief from his state convictions. 15 The petition for such relief is untimely, however, as pointed out in respondent’s motion to 16 dismiss. Lee had until August 26, 2016 to file a timely federal habeas petition, but he did 17 not file one until 2020. His contention that he is entitled to a later start date because of a 18 United States Supreme Court case is unfounded because that case did not recognize a new 19 constitutional right. Furthermore, Lee is not entitled to statutory or equitable tolling. The 20 motion to dismiss is GRANTED and the petition is DISMISSED. 21 BACKGROUND 22 In 2015 Lee pleaded nolo contendere in the Alameda County Superior Court to a 23 charge of second degree robbery and to allegations that his crime was a serious and violent 24 felony. (Am. Pet., Dkt. No. 15 at 2.) He was sentenced on June 26, 2015. (Id. at 1.) Lee 25 filed no appeals, (id. at 2), which means that his conviction became final 60 days after 26 sentencing, on August 25, 2015. See Cal. Rules of Court, Rule 8.308(a). This means Lee 27 had until August 26, 2016 to file a timely habeas petition, which is one year after his 1 filed in 2020. 2 On July 22, 2019, Lee filed a habeas petition in the superior court, which denied it 3 on July 29, 2019. (Mot. to Dismiss, Dkt. No. 19 at 22-23.) On November 27, 2019, Lee 4 filed a habeas petition in the state appellate court, which denied it on January 16, 2020. 5 (Id. at 27.) On February 6, 2020, Lee filed a habeas petition in the state supreme court, 6 which denied it on May 13, 2020. (Id. at 29.) This federal habeas action was filed in 7 August 2020. (Dkt. No. 1.) 8 DISCUSSION 9 I. Standard of Review 10 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 11 federal habeas petitions must be filed within one year of the latest of the date on which: 12 (1) the judgment became final after the conclusion of direct review or the time passed for 13 seeking direct review; (2) an impediment to filing an application created by 14 unconstitutional state action was removed, if such action prevented petitioner from filing; 15 (3) the constitutional right asserted was recognized by the Supreme Court, if the right was 16 newly recognized by the Supreme Court and made retroactive to cases on collateral 17 review; or (4) the factual predicate of the claim could not have been discovered through 18 the exercise of due diligence. 28 U.S.C. § 2244 (d)(1). This one-year clock starts ticking 19 90 days after direct state review is final. “[W]hen a petitioner fails to seek a writ of 20 certiorari from the United States Supreme Court, the AEDPA’s one-year limitations period 21 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 22 expires.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 23 II. Timeliness of the Petition 24 Lee’s petition is untimely. He had until August 26, 2016 — one year after his state 25 convictions became final — to file a timely habeas petition.1 The current petition was filed — 26 — 1 Lee is not entitled to the additional 90 days afforded by Bowen. Because he did not — 27 — appeal, he could not petition the United States Supreme Court to review a state supreme 1 in 2020, which is well after the August 26, 2016 deadline. 2 Lee contends he is entitled to a later AEDPA start date. He believes that in Class v. 3 United States, 138 S. Ct. 798, 805 (2018), the U.S. Supreme Court recognized a new 4 constitutional right, thereby setting a new start date to the one-year limitation period. See — 5 — 28 U.S.C. § 2244 (d)(1)(C) (federal habeas petitions must be filed within one year of “the 6 date on which the constitutional right asserted was initially recognized by the Supreme 7 Court, if the right has been newly recognized by the Supreme Court and made retroactively 8 applicable to cases on collateral review.”) He asserts that because of Class, he “is no 9 longer barred from a post-conviction attack on the validity of a judgment of conviction 10 based on ‘Newly Discovered Evidence’ claims going to the jurisdiction of the court and 11 claims of Constitutional Dimension.” (Trav., Dkt. No. 22 at 2.) 12 Class did not recognize a new constitutional right, so Lee is not entitled to a new 13 start date for the one-year limitation period. Class is merely “the Supreme Court’s latest 14 word” on the “Menna-Blackledge exception,” which “allows for constitutionally-based 15 appeals — despite an unconditional guilty plea — where the appeal, if successful, would 16 mean that the government cannot prosecute the defendant at all.” United States v. Chavez17 Diaz, 949 F.3d 1202, 1207-1208 (9th Cir. 2020) (emphasis omitted). The Menna18 Blackledge exception is decades old and was noted by this Court in the Order to Show 19 Cause issued in response to Lee’s petition. (Order to Show Cause, Dkt. No. 18 at 2, n.1.) 20 Even if Class did recognize a new constitutional right, Lee’s petition would still be 21 untimely. Class was issued on February 21, 2018, which means that petitioner would have 22 had until February 22, 2019 to file a timely federal habeas petition.2 The petition was not 23 filed until April 2020. 24 Furthermore, Lee would need to show “actual innocence”, which is a demanding 25 standard. “Actual innocence” is established when, in light of all the evidence, “it is more — 26 — — 27 — 2 Lee’s habeas petitions cannot toll this limitations period (if it could be considered a 1 likely than not that no reasonable juror would have convicted [the petitioner].” Bousley v. 2 United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298 , 327-28 3 (1995)). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Id. 4 A petitioner can make a showing of “actual innocence” by presenting the court with new 5 evidence which raises a sufficient doubt as “to undermine confidence in the result of the 6 trial.” Schlup, 513 U.S. at 324 . Schlup requires a petitioner “to support his allegations of 7 constitutional error with new reliable evidence—whether it be exculpatory scientific 8 evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not 9 presented at trial.” Id. But here, Lee has not stated what new evidence shows he is 10 innocent. In his amended petition, he mentions in a conclusory fashion that his crime of 11 robbery should not be considered a violent felony but he does not set forth a specific and 12 detailed factual basis for this assertion. (Am. Pet., Dkt. No. 17 at 16-19.) In no way has 13 Lee met this demanding standard. 14 A. Statutory Tolling 15 Lee has not specifically asserted that he is entitled to statutory tolling. I have 16 reviewed the circumstances all the same and determine that he is not. 17 For purposes of statutory tolling, the time during which a properly filed application 18 for state post-conviction or other collateral review is pending is excluded from the one19 year limitations period. See 28 U.S.C. § 2244 (d)(2). Because Lee’s state petitions were 20 filed after AEDPA’s statute of limitations expired, they cannot toll the limitation period. 21 See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Section 2244(d)(2) cannot 22 “revive” the limitation period once it has run (i.e., restart the clock to zero); it can only 23 serve to pause a clock that has not yet fully run. “Once the limitations period is expired, 24 collateral petitions can no longer serve to avoid the statute of limitations.” Rashid v. 25 Kuhlmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998). 26 B. Equitable Tolling 27 Lee has not specifically asserted that he is entitled to equitable tolling. I have also 1 A federal habeas petitioner is entitled to equitable tolling if he can show “‘(1) that 2 || he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 3 || stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631 , 649 4 || (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 5 || F.3d 1104, 1107 (9th Cir. 1999)). 6 Equitable tolling is not granted as a matter of course. In fact, it is “unavailable in 7 || most cases.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting Miles v. 8 || Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)). “[T]he threshold necessary to trigger 9 || equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Id. 10 || (citation omitted). Nothing in the record shows that Lee 1s entitled to equitable tolling. He 11 || has not shown that he has been acting diligently and that some extraordinary circumstance 2 prevented timely filing. CONCLUSION S 14 Respondent’s motion to dismiss the petition as untimely is GRANTED. (Dkt. No. 3 15 || 19.) The petition is DISMISSED. a 16 A certificate of appealability will not issue. Lee has not shown “that jurists of 17 || reason would find it debatable whether the petition states a valid claim of the denial of a 18 || constitutional right and that jurists of reason would find it debatable whether the district 19 || court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 20 Lee’s motion-request for a ruling is DENIED as moot. (Dkt. No. 24.) 21 The Clerk shall terminate all pending motions, enter judgment in favor of 22 || respondent, and close the file. 23 IT IS SO ORDERED. | 24 Dated: March 8, 2022 \ 002 WILLIAM H. ORRICK 26 United States District Judge — 27 — — 28 —