Errol Joseph Scorza v. State of California

Filing 34

FINDINGS OF FACT signed by Judge Percy Anderson. (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ERROL JOSEPH SCORZA, IV,

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Plaintiff,
v.

No. CV 17-4044 PA (AFMx)
No. 18-55676
FINDINGS OF FACT

STATE OF CALIFORNIA,

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Defendant.

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On June 26, 2018, the United States Court of Appeals for the Ninth Circuit remanded

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this action to district court to make a factual determination when the district court first

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received plaintiff Errol Joseph Scorza, IV’s (“Plaintiff’s”) second Notice of Appeal from the

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Judgment entered on December 1, 2017. After hearing and considering testimony in this

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matter, the Court makes the following findings of fact.

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1.

In 2009, Plaintiff was convicted in Los Angeles County Superior Court on

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various charges and later was sentenced to 76 years to life in state prison. See People v.

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Scorza, No. BA353553 (L.A. Cnty. Super. Ct.).

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2.

In 2013, Plaintiff filed a habeas petition in this Court. The petition was

dismissed with prejudice as untimely, and the Ninth Circuit denied a certificate of

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appealability. See Errol Joseph Scorza, IV v. Kim Holland, No. 2:13-cv-09455-PA-RNB

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(C.D. Cal.).

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3.

In 2016, Plaintiff filed a second habeas petition in this Court. The petition was

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dismissed without prejudice as an unauthorized successive petition. See Errol Joseph Scorza

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IV v. Kim Holland, No. 2:16-cv-05927-PA-AFM (C.D. Cal.).

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4.

Plaintiff then filed an application with the Ninth Circuit for leave to file a

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successive habeas petition. The application was denied on May 10, 2017. See Errol Scorza

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IV v. Kim Holland, No. 16-73056 (9th Cir.).

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5.

On May 31, 2017, Plaintiff, proceeding pro se, filed a Complaint again

challenging his state-court conviction and sentence. (Docket No. 1.)
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On August 8, 2017, the assigned United States Magistrate Judge dismissed the

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Complaint with leave to amend for failure to comply with the pleading standards of the

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Federal Rules of Civil Procedure and failure to state a claim. (Docket No. 13.)

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7.

On October 4, 2017, after Plaintiff failed to timely file an amended complaint,

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the Magistrate Judge ordered Plaintiff to show cause why this action should not be dismissed

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for lack of prosecution. (Docket No. 14.) Plaintiff was given until October 17, 2017 to

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respond to the Order to Show Cause or to file an amended complaint.

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8.

After Plaintiff failed to timely respond to the Order to Show Cause, on

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October 30, 2017, the Magistrate Judge issued a Report and Recommendation that this

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action be dismissed without prejudice for failure to diligently prosecute. (Docket No. 16.)

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Plaintiff was given until November 20, 2017 to file objections to the Report and

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Recommendation. (Docket No. 17.)

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9.

Plaintiff did not file objections to the Report and Recommendation.

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10.

On December 1, 2017, the Court filed an Order accepting and adopting the

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Report and Recommendation and a Judgment dismissing this action without prejudice.

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(Docket Nos. 18, 19.)

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11.

Also on December 1, 2017, Petitioner filed a Notice of Appeal (dated

November 17, 2017) from the Magistrate Judge’s Report and Recommendation (the “First
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Notice of Appeal”). (Docket No. 20.) See Errol Scorza, IV v. State of California,

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No. 17-56812 (9th Cir.).

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12.

On May 23, 2018, the Ninth Circuit dismissed the appeal for lack of

jurisdiction. (Docket No. 24.)
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However, the Ninth Circuit ordered that a second Notice of Appeal, which

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Plaintiff had attempted to file in the Ninth Circuit, be transferred to district court for filing as

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a Notice of Appeal from the Court’s December 1, 2017 Judgment. (See Docket No. 24.)

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On May 24, 2018, the Court filed the second Notice of Appeal (the “Second

Notice of Appeal”). (Docket No. 25.) See Errol Joseph Scorza IV v. State of California,
No. 18-55676 (9th Cir.).
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In Plaintiff’s second appeal, the Ninth Circuit ordered Plaintiff to show cause

why the appeal should not be dismissed as untimely. (See Docket No. 29.)
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Plaintiff responded that Palagi Scorza, who is not a party to this action,

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attempted to manually file the Second Notice of Appeal in the district court on December

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14, 2017, but that the Notice of Appeal was rejected because there was already a Notice of

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Appeal on file. (See Docket No. 29 at 2.)

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On June 26, 2018, the Ninth Circuit remanded the action to this Court to make

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a factual determination as to when the Court first received the Second Notice of Appeal.

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(Docket No. 29 at 2.)

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18.

The Court held a hearing on August 24, 2018 and heard testimony from Palagi

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Scorza, who is Plaintiff’s wife. The Court also held hearings on October 3, 2018 and

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October 9, 2018 and heard testimony from Christopher Sawyer and Renico Smith, who work

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as pro se filing clerks in the district court.

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19.

Ms. Scorza testified that Plaintiff informed her of the need to file a second

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Notice of Appeal in December 2017 and sent her a completed form to file. She went to the

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Clerk’s filing window in the Spring Street Courthouse on December 14, 2017 to file the

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Second Notice of Appeal. However, the document was rejected by a slim, bald black man

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who informed her that a Notice of Appeal was already on file. She left without filing the

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document.

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20.

Ms. Scorza’s credibility is undermined by inconsistencies in her testimony.

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21.

Ms. Scorza testified that Plaintiff signed both the First Notice of Appeal and

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the Second Notice of Appeal, but the signatures on the two documents do not match.
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Additionally, Ms. Scorza testified that Plaintiff prepared the Second Notice of

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Appeal and then sent it to her. However, the Second Notice of Appeal indicates that it was

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signed by Plaintiff on December 14, 2017, the same date that Ms. Scorza states that she

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attempted to file it. The Court finds it unlikely that Ms. Scorza could have received the

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document from Plaintiff the same day that he signed since she has not visited him since he

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has been in custody.

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23.

Mr. Sawyer currently works as a Pro Se Civil Intake Clerk and held the same

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position in December 2017. Mr. Sawyer receives documents at the civil intake window and

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files new cases by pro se litigants.

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24.

Mr. Sawyer was one of only two African American males working at the

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Clerk’s pro se civil intake window in December 2017. Of those two, only he has a shaved or

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bald head.

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25.

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Mr. Sawyer was not working on December 14, 2017. He was on vacation

from December 11 until some time after Christmas in 2017.
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Mr. Sawyer testified that he would accept a Notice of Appeal even if there was

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one already on file. He explained that he would leave it to the Ninth Circuit to determine

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whether the new filing is proper. He would not have rejected the Second Notice of Appeal.

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Mr. Smith currently works as a Civil Intake Clerk, and he held the same

position in December 2017. Mr. Smith receives pro se filings.
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Mr. Smith is African American and has closely cropped hair, but he has never

had a shaved or bald head. He is not slim.
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Mr. Smith does not match the description that Ms. Scorza gave of the person

who rejected the Second Notice of Appeal.
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30.

Mr. Smith was working on December 14, 2017 but has no recollection of the

alleged attempted filing of the Second Notice of Appeal.
31.

Mr. Smith has never rejected a Notice of Appeal in a case where there already

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was one on file. Mr. Smith explained that he would seek advice from the Appellate

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Department in the clerk’s office whether to file the document or send it to the Ninth Circuit,

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but in no event would he reject the document.

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32.

The Court cannot conclude by a preponderance of the evidence that Ms.

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Scorza unsuccessfully attempted to file the Second Notice of Appeal on December 14, 2017,

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or on any other date. Nor can the Court conclude by a preponderance of the evidence that

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the Court received the Second Notice of Appeal on December 14, 2017. Ms. Scorza’s claim

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that she attempted to file a Second Notice of Appeal on December 14, 2017 is not credible.

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The Clerk is ordered to serve a copy of these Findings of Fact on the United States Court of

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Appeals for the Ninth Circuit.

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DATED: January 15, 2019

___________________________________
Percy Anderson
UNITED STATES DISTRICT JUDGE

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