Mora v. Clark

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JOE MORA, Case No.: 19-cv-02468-AJB-MSB Petitioner, ORDER: [12] v. 13 (1) DENYING PETITIONER’S KEVIN CLARK, Warden, et al., MOTION FOR AN EXTENSION OF [14] TIME, (Doc. No. 18); 15 Respondents. (2) APPROVING AND ADOPTING [16] THE REPORT AND 17 RECOMMENDATION, (Doc. No. 10); [18] (3) CONSTRUING PETITIONER’S 19 MOTIONS FOR RECONSIDERATION AS OBJECTIONS AND [20] OVERRULING PETITIONER’S 21 OBJECTIONS, (Doc. No. 14, 17); [22] (4) GRANTING RESPONDENTS’ 23 MOTION TO DISMISS, (Doc. No. 8); [24] (5) DISMISSING THE PETITION 25 WITH PREJUDICE, (Doc. No. 1); AND [26] (6) DENYING PETITIONER A 27 CERTIFICATE OF APPEALABILITY [28] 1 Joe Mora (“Petitioner”), proceeding pro se, filed a Petition for Writ of Habeas 2 Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254 . (Doc. No. 1.) In the Petition, 3 Petitioner argues his trial counsel was ineffective by failing to call several witnesses, 4 including himself, to the stand, and by failing to request a new trial when audio recordings 5 of a witness’s conversation became available between his conviction and his sentencing. 6 (See Doc. No. 1 at 1–12.) On April 23, 2020, Respondents filed a motion to dismiss the 7 Petition. (Doc. No. 8.) Respondents contend that the Petition should be dismissed with 8 prejudice because Petitioner’s claims are time-barred by the one-year statute of limitations 9 set out in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 10 U.S.C. § 2244 (d). (Doc. No. 8.) Petitioner did not file an opposition, and Respondents did 11 not file a reply. 12 On July 13, 2020, Magistrate Judge Michael S. Berg issued a Report and 13 Recommendation (the “R&R”) recommending that this Court grant Respondents’ motion 14 to dismiss and that judgment be entered dismissing the Petition with prejudice. (Doc. No. 15 10.) Judge Berg’s order instructed that objections to the R&R must be filed by July 27, 16 2020, and replies by August 10, 2020. Instead of filing objections, on August 7, 2020, 17 Petitioner filed a motion for reconsideration. (Doc. No. 14.) This motion was followed by 18 a second motion for reconsideration. (Doc. No. 17.) On October 19, 2020, Petitioner 19 requested a motion for extension of time to file objections, explaining his “Next Friend” 20 concluded that Petitioner had been duped by a “jailhouse lawyer,” and proper objections 21 were not filed. (Doc. No. 18.) 22 After careful consideration of the briefing and for the reasons set forth below, this 23 Court ADOPTS the R&R in its entirely and GRANTS Respondents’ motion to dismiss 24 with prejudice. 25 I. BACKGROUND 26 On July 7, 2015, Petitioner was convicted by a San Diego County Superior Court 27 jury of first-degree murder during the commission of a robbery and a burglary, and found 28 true an alleged gun use enhancement. (Doc. No. 9, Lodg. 3 at 7.) On August 26, 2015, 1 Petitioner was sentenced to life in prison without the possibility of parole plus twenty-five 2 years to life in state prison. (Id.) On March 23, 2016, Petitioner appealed his sentence to 3 the California Court of Appeal, raising one claim of prosecutorial misconduct. (Doc. No. 4 9, Lodg. 2.) On December 14, 2016, the California Court of Appeal affirmed the judgment. 5 (Doc. No. 9, Lodg. 5.) Petitioner then filed a petition for review with the California 6 Supreme Court, (Doc. No. 9, Lodg. 6), which was summarily denied on March 1, 2017. 7 (Doc. No. 9, Lodg. 7.) Petitioner did not file a petition for writ of certiorari to the United 8 States Supreme Court. 9 After his criminal conviction became final by the conclusion of direct review in the 10 California state courts, Petitioner filed a series of four habeas corpus petitions, all of which 11 were denied: 12 • First Petition: On February 2, 2018, Petitioner filed a petition for writ of 13 habeas corpus in the San Diego County Superior Court (“First Petition”), 14 arguing ineffective assistance of counsel and that newly discovered evidence 15 demonstrates actual innocence. (Doc. No. 9, Lodg. 8 at 7.) This First Petition 16 was denied on April 20, 2018, for failure to make a prima facie showing of 17 ineffective assistance of counsel or of actual innocence. (Doc. No. 9, Lodg. 18 9.) 19 • Second Petition: On November 28, 2018, Petitioner then filed a second habeas 20 petition in the San Diego County Superior Court (“Second Petition”), arguing 21 ineffective assistance of counsel. (Doc. No. 9, Lodg. 10 at 8.) The Second 22 Petition was denied on January 29, 2019, for failure to make a prima facie 23 showing of ineffective assistance of counsel. (Doc. No. 9, Lodg. 11.) 24 • Third Petition: Petitioner filed a third habeas petition (“Third Petition”) in the 25 California Court of Appeal on April 18, 2019, arguing that the Superior Court 26 erred in denying his Second Petition and that his defense counsel was 27 ineffective for failing to call several witnesses during trial. (Doc. No. 9, Lodg. 28 12 at 3.) The California Court of Appeal denied the Third Petition on May 13, 1 2019, concluding that it was untimely, and failed to state a prima facie case of 2 ineffective assistance of counsel. (See Doc. No. 9, Lodg. 13.) 3 • Fourth Petition: Petitioner filed a fourth habeas petition (“Fourth Petition”) in 4 the California Supreme Court on August 22, 2019, arguing prosecutorial 5 misconduct, ineffective assistance of counsel, and that new evidence of actual 6 innocence had been uncovered since the time of his trial. (Doc. No. 9, Lodg. 7 14 at 19.) The California Supreme Court summarily denied the Fourth Petition 8 on November 13, 2019. (Doc. No. 9, Lodg. 15.) 9 Petitioner then filed the instant federal habeas petition in this Court on December 10 17, 2019. (Doc. No. 1.) Respondents moved to dismiss the Petition as time-barred, (Doc. 11 No. 8), and Judge Berg issued an R&R recommending dismissal of the Petition with 12 prejudice. (Doc. No. 10.) Petitioner filed two motions for reconsideration, (Doc. Nos. 14, 13 17), in addition to a motion for extension of time. (Doc. No. 18.) This order follows. 14 II. LEGAL STANDARDS 15 The Court reviews de novo those portions of an R&R to which objections are made. 16 See 28 U.S.C. § 636 (b)(1). The Court may “accept, reject, or modify, in whole or in part, 17 the findings or recommendations made by the magistrate judge.” Id. “The statute makes it 18 clear,” however, “that the district judge must review the magistrate judge’s findings and 19 recommendations de novo if an objection is made, but not otherwise.” United States v. 20 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see 21 also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that 22 where no objections were filed, the district court had no obligation to review the magistrate 23 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 24 de novo, findings and recommendations that the parties themselves accept as correct.” 25 Reyna-Tapia, 328 F.3d at 1121 . This legal rule is well-established in the Ninth Circuit and 26 this District. See Wang v. Masaitis, 416 F.3d 992 , 1000 n.13 (9th Cir. 2005) (“Of course, 27 de novo review of a[n] R & R is only required when an objection is made to the R & R.”). 28 // 1 III. DISCUSSION 2 In this case, Petitioner failed to timely object to Judge Berg’s R&R by July 27, 2020. 3 Instead, Petition filed two motions for reconsideration. Now, Petitioner seeks an extension 4 of time to object to the R&R, explaining that his “Next Friend” reviewed his matter, and 5 determined that Petitioner was “duped” by a “jailhouse lawyer” into filing a motion for 6 reconsideration instead of objections. (Doc. No. 18 at 1.) Upon review of the motions for 7 reconsideration, and motion for extension of time, the Court DENIES Petitioner’s 8 untimely request to object to the R&R. However, because of Petitioner’s pro se status, the 9 Court will construe his motions for reconsideration as objections to the R&R, and will 10 accordingly review those portions of Judge Berg’s R&R objected to de novo. Thomas v. 11 Madden, No. 5:19-CV-00850-JAK-JC, 2020 WL 748644 , at *1 (C.D. Cal. Feb. 13, 2020), 12 certificate of appealability denied, No. 20-55341, 2020 WL 3526399 (9th Cir. May 7, 13 2020) (construing a motion for reconsideration as an objection to the R&R). 14 Turning to the R&R in light of the objections, Judge Berg properly concluded that 15 dismissal is warranted based on the statute of limitations set forth in the Antiterrorism and 16 Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244 (d). (Doc. No. 10.) A federal 17 habeas petition may be dismissed with prejudice if it is not filed within the appropriate time 18 period pursuant to the AEDPA. See Jiminez v. Rice, 276 F.3d 478 , 482–83 (9th Cir. 2001). 19 AEDPA establishes a one-year statute of limitation to file a federal habeas petition for “a 20 person in custody pursuant to the judgment of a State court,” which begins to run, in 21 relevant part, from “the date on which the judgment became final by the conclusion of 22 direct review or the expiration of the time for seeking such review[.]” 28 U.S.C. 23 § 2244(d)(1)(A). Although the one-year statute of limitations can be calculated based on 24 the “latest” of several other grounds in addition to the ground identified in Section 25 2244(d)(1)(A), see 28 U.S.C. § 2224 (d)(1)(B)–(D), the Petition does not set forth any facts 26 or arguments that suggest any of these other grounds are applicable. (Doc. No. 1.) 27 Therefore, the Petition is subject to the 1-year statute of limitations calculated from the 28 date on which the judgment he challenges became final. 1 Judge Berg correctly applied the statute of limitations in this case. As Judge Berg 2 determined, the relevant date for the computation of the statute of limitations was one year 3 from the date that the state court conviction became final. When a habeas petitioner seeks 4 discretionary review by the state’s highest court but does not file a petition with the United 5 States Supreme Court, the judgment becomes final when the prisoner’s time to petition the 6 Supreme Court expires. See Gonzalez v. Thaler, 565 U.S. 134 , 149–50 (2012). Pursuant to 7 United States Supreme Court Rule 13, Petitioner had ninety days from the entry of an order 8 denying discretionary review by the state supreme court to file his writ of certiorari. See 9 Sup. Ct. R. 13. Because Petitioner did not file a petition for certiorari with the United States 10 Supreme Court, Judge Berg was correct to conclude Petitioner’s conviction became final 11 ninety days after the California Supreme Court denied his petition for direct review of his 12 criminal conviction. As noted above, the California Supreme Court denied Petitioner’s 13 petition for direct review on March 1, 2017. (Doc. No. 9, Lodg. 7.) Thus, after ninety days 14 from March 1, 2017, on May 30, 2017, Petitioner’s conviction became final for the 15 purposes of AEDPA. The statute of limitations for the filing of a habeas petition in federal 16 court began to run on May 31, 2017, the day after the judgment became final. 17 Absent any applicable tolling, Petitioner then had 365 days, until May 31, 2018, to 18 timely initiate a federal habeas petition. The Petition, however, was not filed until 19 December 17, 2019, 566 days past the end of the limitations period. 20 A. Statutory Tolling 21 After determining the Petition was untimely based on the one-year statute of 22 limitations, Judge Berg went on to analyze whether statutory tolling applied to toll 23 Petitioner’s time to file his Petition. AEDPA’s statutory tolling provision suspends the one24 year statute of limitation period while “a properly filed application for State post25 conviction or other collateral review” is pending in state court. 28 U.S.C. § 2244 (d)(2). 26 Thus, “the time when a qualifying [state habeas] application is pending shall not be counted 27 toward a period of limitation.” Id. Judge Berg properly found that statutory tolling would 28 not save the Petition from being untimely. Even if the Court were to factor in all four state 1 habeas petitions, Petitioner would only receive an additional 247 days of statutory tolling 2 after the end of the AEDPA statute of limitation period: 3 • Petitioner’s First Petition was filed on February 2, 2018, and denied on April 4 20, 2018, entitling him, at most, to seventy-seven days of statutory tolling. 5 • Petitioner’s Second Petition was filed on November 28, 2018, and denied on 6 January 29, 2019, adding up to sixty-two days of statutory tolling. 7 • Petitioner’s Third Petition was filed on April 18, 2019, and denied on May 13, 8 2019, equaling twenty-five days of tolling. 9 • Petitioner’s Fourth Petition was filed on August 22, 2019, and denied on 10 November 13, 2019, totaling eighty-three days. 11 Because the Petition was untimely by 566 days, tolling the statute of limitations for 12 247 days would still result in an untimely petition by 319 days. Accordingly, Judge Berg 13 was correct in his analysis that statutory tolling does not help Petitioner. [14] B. Equitable Tolling [15] In addition to statutory tolling, AEDPA’s one-year statute of limitations may be [16] subject to equitable tolling in appropriate circumstances. See Holland v. Florida, 560 U.S. 17 631, 645 (2010). The threshold to trigger equitable tolling, however, is high, and therefore [18] is not available in most cases. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). To [19] be entitled to equitable tolling, a habeas petitioner must demonstrate two elements: (1) “he [20] has been pursuing his rights diligently,” and (2) “some extraordinary circumstance stood [21] in his way.” Holland, 560 U.S. at 649 (citing Pace, 544 U.S. at 418); see also Lawrence v. 22 Florida, 549 U.S. 327, 335 (2007) (same). The failure to file a timely petition must be the [23] result of external forces, not the result of the petitioner’s lack of diligence. See Miles v. [24] Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). [25] Judge Berg soundly determined that Petitioner is not entitled to equitable tolling of [26] AEDPA’s statute of limitations because the Petition does not allege any facts that would [27] explain the delay in bringing a timely Petition. (Doc. No. 10 at 10.) In Petitioner’s motion [28] 1 Petitioner appears to argue that equitable tolling should apply because he was “denied 2 access to the Courts, and other legal services by CDCR.” (Doc. No. 17 at 1 (cleaned up).) 3 Petitioner explains that he was denied the proper equipment while in jail to view disks in 4 which his appellate attorney had provided to him in order for Petitioner to prepare his 5 petition to the United States Supreme Court. (Id.) Petitioner further states he had to 6 purchase and wait for a CD-player while in jail to listen to evidence on the disk. (Id. at 2.) 7 As a general matter, Petitioner’s assertions regarding lack of legal services do not 8 necessarily rise to the level of an extraordinary circumstance warranting equitable tolling. 9 See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (rejecting argument that lack of 10 access to library materials automatically qualified as grounds for equitable tolling). 11 Additionally, the Court is not persuaded by Petitioner’s explanation because a writ of 12 certiorari was never filed, and problems with accessing evidence as to the writ of certiorari 13 does not explain why there was nearly a year delay in filing the federal habeas petition. As 14 such, the Court does not find that any “extraordinary circumstance” stood in Petitioner’s 15 way of filing his federal habeas petition. 16 Finding that neither statutory nor equitable tolling applies, the Court ADOPTS the 17 R&R and GRANTS Respondents’ motion to dismiss the Petition as time-barred by the 18 AEDPA. 19 IV. The Court Declines to Issue a Certificate of Appealability 20 Pursuant to Rule 11 of the Rules following 28 U.S.C. § 2254 , a district court “must 21 issue or deny a certificate of appealability when it enters a final order adverse to the 22 applicant.” The district court may issue a certificate of appealability if the petitioner “has 23 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). 24 To meet this threshold showing, a petitioner must show that: (1) the issues are debatable 25 among jurists of reason, (2) that a court could resolve the issues in a different manner, or 26 (3) that the questions are adequate to deserve encouragement to proceed further. See Maciel 27 v. Cate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a review of the Petition, the record, 28 and the R&R, the Court cannot find that any of these grounds applies. Reasonable jurists 1 || would not find debatable or wrong that the Petition is time-barred. Accordingly, the Court 2 || declines to issue Petitioner a certificate of appealability 3 CONCLUSION 4 For all of the foregoing reasons, the Court hereby: (1) DENIES Petitioner’s motion 5 ||for an extension of time, (Doc. No. 18); (2) APPROVES and ADOPTS the R&R in its 6 ||entirety, (Doc. No. 10); (3) CONSTRUES Petitioner’s motions for reconsideration as 7 || objections to the R&R and OVERRULES Petitioner’s objections, (Doc. No. 14, 17); (4) 8 ||GRANTS Respondents’ motion to dismiss, (Doc. No. 3); (5) DISMISSES the Petition 9 WITH PREJUDICE, (Doc. No. 1); and (6) DENIES Petitioner a certificate of 10 || appealability. The Clerk of Court is DIRECTED to CLOSE THIS CASE. [11] 12 IT IS SO ORDERED. 13 ||Dated: October 26, 2020 © 14 Hon. Anthony J. attaglia 15 United States District Judge