Jose Luis Mezquita v. J. Soto

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Robert N. Block.( Response to Order to Show Cause due by 9/8/2014.) (twdb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11

JOSE LUIS MEZQUITA,

12

Petitioner,

13

vs.

14

J. SOTO, Warden,

15

Respondent.

16
17

) Case No. CV 14-5994-VAP (RNB)
)
)
) ORDER TO SHOW CAUSE
)
)
)
)
)
)

On or about July 9, 2014 (signature date), petitioner constructively filed a

18 Petition for Writ of Habeas Corpus by a Person in State Custody herein. The Petition
19 purports to be directed to a conviction sustained by petitioner in Los Angeles County
20 Superior Court in 2002. Petitioner is alleging three grounds for relief:
21
1.
His federal constitutional rights where violated when the
22

trial court denied his new trial motion based on jury misconduct during

23

voir dire.

24

2.

The prosecutor’s misconduct during closing argument and

25

throughout the trial violated his federal constitutional right to due

26

process and a fair trial.

27
28

3.

The alleged facts in Grounds 1 and 2, if proven “would

establish a miscarriage of justice and actual innocence gateway
1

1

exception to the AEDPA time limitations.”

2
3

Since this action was filed after the President signed into law the Antiterrorism

4 and Effective Death Penalty Act of 1996 (the “AEDPA”) on April 24, 1996, it is
5 subject to the AEDPA’s one-year limitation period, as set forth at 28 U.S.C. §
6 2244(d). See Calderon v. United States District Court for the Central District of
7 California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S.
8 1099 and 118 S. Ct. 1389 (1998).1 28 U.S.C. § 2244(d) provides:
9

“(1) A 1-year period of limitation shall apply to an application

10

for a writ of habeas corpus by a person in custody pursuant to the

11

judgment of a State court. The limitation period shall run from the latest

12

of--

13

(A)

the date on which the judgment became final by

14

conclusion of direct review or the expiration of the time for

15

seeking such review;

16

(B)

the date on which the impediment to filing an

17

application created by State action in violation of the Constitution

18

or laws of the United States is removed, if the applicant was

19

prevented from filing by such State action;

20

(C)

the date on which the constitutional right asserted

21

was initially recognized by the Supreme Court, if the right has

22

been newly recognized by the Supreme Court and made

23

retroactively applicable to cases on collateral review; or

24

(D)

the date on which the factual predicate of the claim

25
26
1

Beeler was overruled on other grounds in Calderon v. United States
District Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526
28 U.S. 1060 (1999).
27

2

1

or claims presented could have been discovered through the

2

exercise of due diligence.”

3
4

Here, it appears from the face of the Petition that petitioner did not seek review

5 from the California Supreme Court of the Court of Appeal decision on direct appeal.2
6 Under the relevant California Rules of Court, his time for doing so lapsed 40 days
7 after the filing of the June 25, 2003 Court of Appeal decision. See Cal. R. Ct.
8 8.264(b) [formerly 24(b)(1)] and 8.500(e) [formerly 28(e)(1)]. Thus, for purposes of
9 28 U.S.C. § 2244(d)(1)(A), petitioner’s judgment of conviction “became final by
10 conclusion of direct review or the expiration of the time for seeking such review” on
11 August 4, 2003. Moreover, given the nature of petitioner’s claims herein, it does not
12 appear to the Court that any of the other “trigger” dates under 28 U.S.C. § 2244(d)(1)
13 apply here. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of
14 limitations begins to run when a prisoner “knows (or through diligence could
15 discover) the important facts, not when the prisoner recognizes their legal
16 significance”). Thus, unless a basis for tolling the statute existed, petitioner’s last day
17 to file his federal habeas petition was August 4, 2004. See Patterson v. Stewart, 251
18 F.3d 1243, 1246 (9th Cir. 2001); Beeler, 128 F.3d at 1287-88.
19 //
20
21
22
23
24
25
26
27
28

2

Although petitioner blames this failure on “appellate counsel’s
ineffective assistance,” the Supreme Court has held that the right to counsel extends
“to the first appeal of right, and no further.” See Pennsylvania v. Finley, 481 U.S.
551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). There is no constitutional right
to counsel for the purpose of filing a Petition for Review in the California Supreme
Court, and where no constitutional right to counsel exists, there can be no claim for
ineffective assistance. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct.
1300, 71 L. Ed. 2d 475 (1982) (no right to counsel when pursuing discretionary state
appeal); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989) (“If a state is not
constitutionally required to provide a lawyer, the constitution cannot place any
constraints on that lawyer’s performance.”).
3

1

28 U.S.C. § 2244(d)(2) provides:

2

“The time during which a properly filed application for State post-

3

conviction or other collateral review with respect to the pertinent

4

judgment or claim is pending shall not be counted toward any period of

5

limitation under this subsection.”

6
7

In Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, 529 U.S. 1104

8 (2000), the Ninth Circuit construed the foregoing tolling provision with reference to
9 California’s post-conviction procedures. The Ninth Circuit held that “the statute of
10 limitations is tolled from the time the first state habeas petition is filed until the
11 California Supreme Court rejects the petitioner’s final collateral challenge.” See id.
12 at 1006. Accord, Carey v. Saffold, 536 U.S. 214, 219-21, 122 S. Ct. 2134, 153 L. Ed.
13 2d 260 (2002) (holding that, for purposes of statutory tolling, a California petitioner’s
14 application for collateral review remains “pending” during the intervals between the
15 time a lower state court denies the application and the time the petitioner files a
16 further petition in a higher state court). However, the statute of limitations is not
17 tolled during the interval between the date on which the judgment of conviction
18 became final and the filing of the petitioner’s first collateral challenge. See Nino,
19 supra.
20

Here, it appears from the face of the Petition that petitioner’s first collateral

21 challenge was a Los Angeles County Superior Court habeas petition that petitioner
22 constructively filed on August 13, 2013. By then, petitioner’s federal filing deadline
23 of August 4, 2004 already had long lapsed and could not be reinitiated. See, e.g.,
24 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (holding that § 2244(d) “does not
25 permit the reinitiation of the limitations period that has ended before the state petition
26 was filed,” even if the state petition was timely filed), cert. denied, 540 U.S. 924
27 (2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington,
28 264 F.3d 894, 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 1143 (2002).
4

1

In Holland v. Florida, - U.S. -, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130

2 (2010), the Supreme Court held that the AEDPA’s one-year limitation period also is
3 subject to equitable tolling in appropriate cases. However, in order to be entitled to
4 equitable tolling, the petitioner must show both that (1) he has been pursuing his
5 rights diligently, and (2) some extraordinary circumstance stood in his way and
6 prevented his timely filing. See id. (quoting Pace v. DiGuglielmo, 544 U.S. 408,
7 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). The Ninth Circuit has held that the
8 Pace standard is consistent with the Ninth Circuit’s “sparing application of the
9 doctrine of equitable tolling.” See Waldron-Ramsey v. Pacholke, 556 F.3d 1008,
10 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009).
11

Thus, in order to be entitled to equitable tolling of the limitation period, “[t]he

12 petitioner must show that ‘the extraordinary circumstances were the cause of his
13 untimeliness and that the extraordinary circumstances made it impossible to file a
14 petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting
15 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to
16 trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the
17 rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S. 1003
18 (2002). Consequently, as the Ninth Circuit has recognized, equitable tolling will be
19 justified in few cases. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as
20 amended); see also Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doctrine in
21 ‘extraordinary circumstances’ necessarily suggests the doctrine’s rarity, and the
22 requirement that extraordinary circumstances ‘stood in his way’ suggests that an
23 external force must cause the untimeliness, rather than, as we have said, merely
24 ‘oversight, miscalculation or negligence on [the petitioner’s] part, all of which would
25 preclude the application of equitable tolling.’”).
26

Here, it does not appear from the face of the Petition that petitioner has any

27 basis for equitable tolling of the limitation period. Even if, as petitioner alleges, his
28 appellate counsel failed to advise him back in 2003 of the AEDPA limitation period,
5

1 the law is well established that ignorance of the law does not constitute an
2 “extraordinary circumstance” entitling a habeas petitioner to any equitable tolling of
3 the limitation period. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
4 2006) (holding that “a pro se petitioner’s lack of legal sophistication is not, by itself,
5 an extraordinary circumstance warranting equitable tolling” of the AEDPA
6 limitations period); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (ignorance
7 of the limitation period did not warrant equitable tolling); Miller v. Marr, 141 F.3d
8 976, 978 (10th Cir.) (petitioner's alleged lack of access to law library materials and
9 resulting unawareness of the limitation period until it was too late did not warrant
10 equitable tolling), cert. denied, 525 U.S. 891 (1998); Gazzeny v. Yates, 2009 WL
11 294199, at *6 (C.D. Cal. Feb. 4, 2009) (noting that “[a] prisoner’s illiteracy or
12 ignorance of the law do not constitute extraordinary circumstances” for purposes of
13 tolling of the AEDPA statute of limitations); Singletary v. Newland, 2001 WL
14 1220738, at *2 (N.D. Cal. Sept. 28, 2001) (“A misunderstanding of the complexities
15 of federal habeas relief is not considered an extraordinary circumstance or external
16 factor for purposes of avoiding an otherwise valid dismissal, as complete illiteracy
17 does not even provide a sufficient basis for equitable tolling.”); Ekenberg v. Lewis,
18 1999 WL 13720, at *2 (N.D. Cal. Jan. 12, 1999) (“Ignorance of the law and lack of
19 legal assistance do not constitute such extraordinary circumstances.”); Bolds v.
20 Newland, 1997 WL 732529, at *2 (N.D. Cal. Nov. 12, 1997) (“Ignorance of the law
21 and lack of legal assistance do not constitute such extraordinary circumstances.”); see
22 also Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991) (holding
23 that neither “lack of knowledge of applicable filing deadlines,” nor “unfamiliarity
24 with the legal process,” nor “lack of representation during the applicable filing
25 period,” nor “illiteracy,” provides a basis for equitable tolling). Moreover, it does not
26 appear from the face of the Petition that petitioner was pursuing his rights diligently
27 during the 10-year interval between when his conviction became final and when he
28 filed his first state collateral challenge.
6

1

In Ground 3 of the Petition, petitioner purports to invoke the “actual

2 innocence” exception to the AEDPA statute of limitations. In McQuiggin v. Perkins,
3 - U.S.-, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013), the Supreme Court held
4 that, in order to invoke that exception, a habeas petitioner must make a convincing
5 showing of actual innocence under Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130
6 L. Ed. 2d 808 (1995). Under Schlup, 513 U.S. at 324, “such a claim [of actual
7 innocence] requires petitioner to support his allegations of constitutional error with
8 new reliable evidence--whether it be exculpatory scientific evidence, trustworthy
9 eyewitness accounts, or critical physical evidence--that was not presented at trial.”
10 Further, “the petitioner must show that it is more likely than not that no reasonable
11 juror would have convicted him in light of the new evidence.” Id. at 327.
12

The Supreme Court has stressed that the exception is limited to “certain

13 exceptional cases involving a compelling claim of actual innocence.” House v. Bell,
14 547 U.S. 518, 521, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006); see also Schlup, 513 U.S.
15 at 324 (noting that “experience has taught us that a substantial claim that
16 constitutional error has caused the conviction of an innocent person is extremely
17 rare”). Moreover, the Ninth Circuit has noted that, because of “the rarity of such
18 evidence, in virtually every case, the allegation of actual innocence has been
19 summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing
20 Calderon v. Thomas, 523 U.S. 538, 559, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998)).
21

In the few cases the Court has located in which a federal habeas petitioner has

22 been able to meet the Schlup standard, the “new evidence” consisted of credible
23 evidence that the petitioner had a solid alibi for the time of the crime, numerous
24 exonerating eyewitness accounts of the crime, DNA evidence excluding the petitioner
25 and identifying another potential perpetrator, a credible confession by a likely suspect
26 explaining that he had framed the petitioner, and/or evidence contradicting the very
27 premise of the prosecutor’s case against the petitioner. See, e.g., House, 547 U.S. at
28 521, 528-29, 540, 548-54; Souter v. Jones, 395 F.3d 577, 581-84, 591-92, 596 (6th
7

1 Cir. 2005); Carriger v. Stewart, 132 F.3d 463, 465, 471, 478 (9th Cir. 1997), cert.
2 denied, 523 U.S. 1133 (1998); Lisker v. Knowles, 463 F. Supp. 2d 1008, 1018-28
3 (C.D. Cal. 2006); Garcia v. Portuondo, 334 F. Supp. 2d 446, 455-56 (S.D.N.Y. 2004);
4 Schlup v. Delo, 912 F. Supp. 448, 451-55 (E.D. Mo. 1995).
5

Here, petitioner is basing his “actual innocence” claim on the factual

6 allegations underlying his juror misconduct and prosecutorial misconduct claims. He
7 also disputes the credibility of the eyewitness testimony presented at trial. However,
8 petitioner must establish his factual innocence of the crime, and not mere legal
9 insufficiency. See Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140
10 L. Ed. 2d 828 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003).
11 Since petitioner has not even purported to adduce any new reliable evidence of his
12 actual innocence that would satisfy the demanding Schlup standard, his actual
13 innocence claim must be summarily rejected.
14

The Ninth Circuit has held that the district court has the authority to raise the

15 statute of limitations issue sua sponte when untimeliness is obvious on the face of the
16 Petition and to summarily dismiss a habeas petition on that ground pursuant to Rule
17 4 of the Rules Governing Section 2254 Cases in the United States District Courts, so
18 long as the Court “provides the petitioner with adequate notice and an opportunity to
19 respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); Herbst v. Cook,
20 260 F.3d 1039, 1042-43 (9th Cir. 2001).
21

IT THEREFORE IS ORDERED that, on or before September 8, 2014,

22 petitioner show cause in writing, if any he has, why the Court should not recommend
23 that this action be dismissed with prejudice on the ground of untimeliness.
24
25 DATED: August 4, 2014
26
27
28

ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE
8