Randy Rogers v. Eric Arnold

Filing 6

ORDER SUMMARILY DISMISSINGHABEAS PETITION AS UNTIMELY by Judge Cormac J. Carney. IT IS THEREFORE ORDERED that Petitioners petition for writ of habeas corpus be dismissed with prejudice as time-barred. (es)

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1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. CV 17-05572-CJC (KES) RANDY ROGERS, Petitioner, ORDER SUMMARILY DISMISSING HABEAS PETITION AS UNTIMELY v. ERIC ARNOLD, Warden, Respondent. 16 17 On July 24, 2017, Randy Rogers (“Petitioner”) constructively filed a Petition 18 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 19 (“Petition”). (Dkt. 1.) On August 3, 2017, the Court issued an Order to Show Cause 20 (“OSC”) why the Petition should not be dismissed as untimely. (Dkt. 4.) On 21 September 5, 2017, Petitioner filed a response to the OSC. (Dkt. 5.) 22 23 For the reasons discussed below, the Court hereby summarily dismisses the Petition as untimely. 24 I. 25 PROCEDURAL HISTORY 26 The following facts are taken from the Petition and its exhibits, Petitioner’s 27 response to the OSC, the Court’s own records, or other public records; where 28 necessary, the Court takes judicial notice of the latter. See Fed. R. Evid. 201(b)(2) 1 1 (“The court may judicially notice a fact that is not subject to reasonable dispute 2 because it . . . can be accurately and readily determined from sources whose accuracy 3 cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th 4 Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as 5 well as the records of an inferior court in other cases.”) 6 A. Petitioner’s Underlying Conviction and Direct Appeal. 7 In 2011, Petitioner was convicted by a Los Angeles County Superior Court 8 jury of twelve counts of robbery. See People v. Rogers, 2012 WL 3765145, at *1 9 (Cal. App. 2d Aug. 31, 2012). The crimes were a series of Starbucks robberies 10 involving a toy gun and no injuries. (Dkt. 5 at 2.) 11 In a bifurcated proceeding, the superior court found true allegations that 12 Petitioner had suffered four prior strike convictions, served two prior prison terms, 13 and suffered two prior serious felony convictions. Id. Under California’s Three 14 Strikes law, Petitioner was sentenced to 160 years to life in state prison. Id. 15 On August 31, 2012, the Court of Appeal affirmed Petitioner’s conviction in 16 an unpublished opinion, rejecting Petitioner’s jury misconduct, ineffective assistance 17 of counsel, and abuse of discretion claims. Rogers, 2012 WL 3765145, at *1-3. 18 Petitioner’s Petition for Review to the California Supreme Court was denied on 19 November 14, 2012. (Dkt. 1 at 2.) 20 B. Petitioner’s State Court Habeas Proceedings. The state habeas petitions filed by Petitioner are as follows1: 21 22 Filing Date Court Case No. Disposition 23 August 23, California Court of B243430 Denied, October 12, 2012 24 2012 Appeal 25 26 27 28 1 The Court compiled this list from a review of the Petition and its attachments, as well as records from the California Court of Appeal website, and included this list in the OSC. (See Dkt. 4 at 2-3.) In his response to the OSC, Petitioner did not identify any additional state petitions. 2 1 October 24, California Supreme 2012 Court November 2, California Court of 2012 Appeal January 7, California Supreme 2013 Court October 29, Los Angeles County 2016 Superior Court January 17, California Court of 2017 Appeal February 27, California Supreme 2017 Court 2 3 4 5 6 7 8 9 10 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 Denied, November 28, 2012 B244904 Denied, January 4, 2013 S208055 Denied, February 20, 2013 YA074167 Denied, December 15, 2016 B280118 Denied, January 20, 2017 S240276 Denied, April 12, 2017 Petitioner’s 2016 and 2017 state petitions raise the claims brought in the instant 14 15 S206175 Petition. C. The Instant Federal Habeas Petition. Petitioner raises the following three claims in his federal habeas petition: Ground One: Petitioner’s sentence violates Miller v. Alabama, 567 U.S. 460 (2012), because it “was imposed under an unconstitutional mandatory minimum sentencing law.” (Dkt. 1 at 5.) Ground Two: “The Three Strikes Law is an arbitrarily applied sentencing scheme that unconstitutionally limits individualized decision-making.” (Id.) Ground Three: California’s Three Strikes Law “is implicitly biased and has been implemented in ways that violate Petitioner’s Fourteenth Amendment rights to equal protection of the laws.” (Id. at 6.) II. LEGAL STANDARD The Court has the authority to (1) raise a statute of limitations issue sua sponte 3 1 when untimeliness is obvious on the face of a habeas petition and (2) summarily 2 dismiss a petition on that ground pursuant to Rule 4 of the Rules Governing Section 3 2254 Cases in the United States District Courts, so long as the Court “provides the 4 petitioner with adequate notice and an opportunity to respond.” See Nardi v. Stewart, 5 354 F.3d 1134, 1141 (9th Cir. 2004); Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th 6 Cir. 2001). 7 A. One-Year Statute of Limitations. 8 This action is subject to the Antiterrorism and Effective Death Penalty Act of 9 1996 (“AEDPA”). Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1287 n.3 10 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998).2 AEDPA provides as follows: 11 (d) (1) A 1-year period of limitation shall apply to an application for a 12 writ of habeas corpus by a person in custody pursuant to the judgment 13 of a State court. The limitation period shall run from the latest of-- 14 (A) the date on which the judgment became final by the 15 conclusion of direct review or the expiration of the time for seeking 16 such review; 17 (B) the date on which the impediment to filing an application 18 created by State action in violation of the Constitution or laws of the 19 United States is removed, if the applicant was prevented from filing by 20 such State action; 21 (C) the date on which the constitutional right asserted was 22 initially recognized by the Supreme Court, if the right has been newly 23 recognized by the Supreme Court and made retroactively applicable to 24 cases on collateral review; or 25 (D) the date on which the factual predicate of the claim or claims 26 presented could have been discovered through the exercise of due 27 28 2 Beeler was overruled on other grounds in Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). 4 1 diligence. 2 (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 28 U.S.C. § 2244(d). 7 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 8 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). 9 The statute of limitations period generally runs from “the date on which the judgment 10 became final by the conclusion of direct review or the expiration of the time for 11 seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Where a state defendant seeks 12 direct review in a state’s highest court, the judgment becomes final when time for 13 seeking certiorari review in the U.S. Supreme Court expires. See Jimenez, 555 U.S. 14 at 120. This is because the U.S. Supreme Court has jurisdiction over final decisions 15 of the highest state court “in which a decision could be had” respecting a 16 constitutional right or other federal law. 28 U.S.C. § 1257(a). To appeal to the U.S. 17 Supreme Court, a petition for writ of certiorari must be filed within 90 days after 18 entry of the state court judgment. U.S. Sup. Ct. R. 13. 19 III. 20 DISCUSSION 21 A. The Petition Is Untimely on Its Face. 22 Petitioner states that he was sentenced in April 2011. (Dkt. 1 at 2.) His Petition 23 for Review to the California Supreme Court was denied on November 14, 2012. (Id. 24 at 3.) The statute of limitations runs from the date when his sentence became final 25 under § 2244(d)(1)(A), so his time for filing a federal habeas petition expired on 26 February 12, 2014, one year and 90 days after final judgment was entered.3 27 3 28 In his response to the OSC, Petitioner argues that he is entitled to “delayed commencement of the limitations period,” but he does not assert any basis for delay 5 1 Accordingly, the Petition is untimely unless Petitioner is entitled to statutory or 2 equitable tolling or has reliable new evidence of his actual innocence. 3 The burden of demonstrating that AEDPA’s one-year limitation period was 4 sufficiently tolled, whether statutorily or equitably, rests with Petitioner. See, e.g., 5 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Banjo v. Ayers, 614 F.3d 964, 967 6 (9th Cir. 2010). 7 B. Petitioner Is Not Claiming Actual Innocence. 8 In Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011), the Ninth Circuit held 9 that “a credible claim of actual innocence constitutes an equitable exception to 10 AEDPA’s limitations period, and a petitioner who makes such a showing may pass 11 through the Schlup4 gateway and have his otherwise time-barred claims heard on the 12 merits.” In recognizing this exception, the Ninth Circuit reasoned that at the time of 13 AEDPA’s passage, “federal courts had equitable discretion to hear the merits of 14 procedurally-defaulted habeas claims where the failure to do so would result in a 15 fundamental miscarriage of justice, such as the conviction of an actually innocent 16 person.” Id. at 933-34 (citations omitted). The en banc court refused to interpret 17 “AEDPA’s statutory silence as indicating a congressional intent to close courthouse 18 doors that a strong equitable claim would ordinarily keep open.” Id. at 934 (quoting 19 Holland v. Florida, 560 U.S. 631, 649 (2010)). The United States Supreme Court 20 recognized this equitable exception in McQuiggin v. Perkins, __ U.S. __, 133 S. Ct. 21 1924, 1931 (2013) (“This rule, or fundamental miscarriage of justice exception, is 22 grounded in the equitable discretion of habeas courts to see that federal constitutional 23 errors do not result in the incarceration of innocent persons.”) 24 Petitioner has not presented a claim of actual innocence. Petitioner challenges 25 the length of his sentence, not his conviction for the underlying robberies. (See Dkt. 26 27 28 recognized by 28 U.S.C. § 2244(d)(1)(B)-(D). (Dkt. 5 at 1.) The Court therefore interprets this statement as seeking equitable tolling. 4 Schlup v. Delo, 513 U.S. 298 (1995). 6 1 5 at 2.) 2 Petitioner, however, does indirectly invoke the equitable “fundamental 3 miscarriage of justice” exception to the AEDPA statute of limitations. He argues that 4 his time-barred claims may proceed if “the statute under which he stands convicted 5 is ‘debatable,’” citing Pena-Rodriguez v. Colorado, __ U.S. __, 137 S. Ct. 855 (2017). 6 (Dkt. 1 at 1.) Pena-Rodriguez held that where a juror makes a clear statement 7 indicating that he or she relied on racial stereotypes or animus to convict a criminal 8 defendant, the Sixth Amendment requires that the no-impeachment rule5 give way to 9 permit the trial court to consider the juror’s statement and any resulting denial of the 10 jury trial guarantee. Id. at 869. In reaching this holding, the United States Supreme 11 Court reasoned that courts have a “duty to confront racial animus in the justice 12 system,” and that a “constitutional rule that racial bias in the justice system must be 13 addressed — including, in some instances, after the verdict has been entered — is 14 necessary to prevent a systemic loss of confidence in jury verdicts ….” Id. at 867, 15 869. 16 Most of Petitioner’s response to the OSC argues that sentencing under 17 California’s Three Strikes law disproportionately disfavors African-Americans. (See 18 Dkt. 5.) Considering these arguments with Petitioner’s citation to Pena-Rodriguez, 19 Petitioner appears to be arguing that if a habeas petitioner claims that his conviction 20 or sentence is unconstitutional because of racial discrimination, then he has alleged 21 a fundamental miscarriage of justice, and the federal courts are duty-bound to 22 disregard mere procedural rules, like AEDPA’s statute of limitations, and reach the 23 merits of the claim. 24 25 26 27 28 While Pena-Rodriguez affirms the “imperative to purge racial prejudice from 5 “A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the noimpeachment rule.” Pena-Rodriguez, 137 S. Ct. at 861. 7 1 the administration of justice,” that decision does not mean that every habeas 2 petitioner alleging racial discrimination alleges a fundamental miscarriage of justice 3 akin to the incarceration of innocent persons. The “actual innocence exception” is 4 based on Schlup, a United States Supreme Court case decided before Congress 5 enacted AEDPA. There is no pre-ADEPA case recognizing an equitable exception 6 for race-based habeas claims. 7 While federal habeas claims generally implicate important constitutional 8 principles, federal courts nonetheless apply AEDPA’s statute of limitations absent 9 new evidence showing “it is more likely than not that no reasonable juror would have 10 convicted” the petitioner. Schlup, 513 U.S. at 329; see also Ferguson v. Palmateer, 11 321 F.3d 820, 823 (9th Cir. 2003) (“AEDPA’s one-year statute of limitations … does 12 not render federal habeas an inadequate or ineffective remedy.”) Courts often 13 dismissed habeas claims alleging racial discrimination as time-barred. See, e.g., 14 Calderon-Silva v. Salazar, No. 07-2420, 2008 U.S. Dist. LEXIS 78831, at *1 (E.D. 15 Cal. Oct. 6, 2008) (holding racial discrimination claim time-barred by AEDPA); 16 Perridon v. Roe, No. 00-1123, 2007 U.S. Dist. LEXIS 78116, at *10 (E.D. Cal. Oct. 17 22, 2007), adopted by Perridon v. Roe, 2007 U.S. Dist. LEXIS 91588 (E.D. Cal., 18 Dec. 13, 2007) (dismissing Batson claim of racial bias in jury selection as time- 19 barred). 20 Ultimately, federal courts do not have inherent power to issue the writ of 21 habeas corpus. Ex parte Bollman, 8 U.S. 75, 94 (1807) (“[T]he power to award the 22 writ by any of the courts of the United States, must be given by written law.”). 23 Congress enacted AEDPA’s one-year limitations period in part “to accelerate the 24 federal habeas process.” Nino v. Galaza, 183 F.3d 1003, 1004-05 (9th Cir. 1999). It 25 is not the role of district courts to create new equitable exceptions to AEDPA. 26 C. Petitioner Is Not Entitled to Sufficient Statutory Tolling. 27 AEDPA provides for statutory tolling, as follows: 28 The time during which a properly filed application for State post8 1 conviction or other collateral review with respect to the pertinent 2 judgment or claim is pending shall not be counted toward any period of 3 limitation under this subsection. 4 28 U.S.C. § 2244(d)(2). The United States Supreme Court has interpreted this 5 language to mean that the AEDPA’s statute of limitations is tolled from the time the 6 first state habeas petition is filed until the California Supreme Court rejects a 7 petitioner’s final collateral challenge, so long as the petitioner has not unreasonably 8 delayed during the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 9 219-21 (2002) (holding that, for purposes of statutory tolling, a California petitioner’s 10 application for collateral review remains pending during the intervals between the 11 time a lower state court denies the application and the time the petitioner files a 12 further petition in a higher state court); Nino, 183 F.3d at 1006 (holding that the 13 statute is tolled from “the time the first state habeas was filed until the California 14 Supreme Court rejects the petitioner’s final collateral challenge.”). Statutory tolling 15 “does not permit the reinitiation of a limitations period that has ended before the state 16 petition was filed,” even if the state petition was timely filed. Ferguson, 321 F.3d at 17 823; Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 18 F.3d 894, 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 1143 (2002). 19 Petitioner filed two rounds of state habeas petitions before his AEDPA statute 20 of limitations expired. Even assuming that those petitions were properly filed and 21 therefore qualified for statutory tolling, the latest AEDPA deadline he could receive 22 would be February 20, 2014, one year after his second California Supreme Court 23 petition (Case No. S208055) was denied. Petitioner is not entitled to statutory tolling 24 for the pendency of the state petitions filed in 2016 and 2017, because they were not 25 initiated during the AEDPA limitations period. See Ferguson, 321 F.3d at 823. As 26 explained below, Petitioner is not entitled to equitable tolling, and therefore his July 27 2017 federal habeas petition is still untimely, even with statutory tolling. 28 9 1 D. Petitioner is Not Entitled to Equitable Tolling. 2 In Holland v. Florida, 560 U.S. at 649, the Supreme Court held that AEDPA’s 3 one-year limitation period also is subject to equitable tolling in appropriate cases. 4 However, to receive equitable tolling, the petitioner must show both that (1) he has 5 been pursuing his rights diligently, and (2) some extraordinary circumstance stood in 6 his way and prevented his timely filing. See id. (quoting Pace, 544 U.S. at 418). 7 The Ninth Circuit has held that the Pace standard is consistent with the 8 “sparing application of the doctrine of equitable tolling.” Waldron-Ramsey v. 9 Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009), cert. denied, 130 S. Ct. 244 (2009). 10 Thus, “[t]he petitioner must show that ‘the extraordinary circumstances were the 11 cause of his untimeliness and that the extraordinary circumstances made it impossible 12 to file a petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) 13 (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold 14 necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 15 swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 16 537 U.S. 1003 (2002). Consequently, as the Ninth Circuit has recognized, equitable 17 tolling will be justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 18 2003); Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary 19 circumstances’ necessarily suggests the doctrine’s rarity, and the requirement that 20 extraordinary circumstances ‘stood in his way’ suggests that an external force must 21 cause the untimeliness, rather than, as we have said, merely ‘oversight, 22 miscalculation or negligence on [the petitioner’s] part, all of which would preclude 23 the application of equitable tolling.’”). 24 In his response to the OSC, Petitioner asserts that he is entitled to equitable 25 tolling because (1) he is proceeding pro se, and (2) his claims are novel. (Dkt. 1 at 26 1, citing Brown v. Roe, 279 F.3d 742 (9th Cir. 2002) (district court abused its 27 discretion by not considering equitable tolling argument raised for first time in 28 objections to report and recommendation, where pro se prisoner was illiterate and 10 1 raised novel claim under new statute).) 2 Pro se status is not an “extraordinary circumstance” justifying equitable 3 tolling. Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“It is clear that pro se 4 status, on its own, is not enough to warrant equitable tolling.”). 5 Regarding novelty, Petitioner’s first claim is based on Miller v. Alabama, 567 6 U.S. 460 (2012), a decision announced on June 25, 2012. Petitioner does not explain 7 why he did not bring his Miller claim until his 2016 state habeas petitions. More 8 fundamentally, Miller held that “children are constitutionally different from adults 9 for purposes of sentencing,” such that mandatory life-without-parole sentences for 10 minors violate the Eight Amendment. Id. at 471. Petitioner was not a minor when 11 he committed the 2008 Starbucks robberies. See Rogers, 2012 WL 3765145, at *3 12 (identifying Petitioner as a juvenile in 1987, but discussing subsequent adult 13 convictions in 1990-1996). Petitioner’s claim that Miller rendered adult mandatory 14 minimum sentences unconstitutional is not a “novel” reading of Miller – it is a wrong 15 reading of Miller. (Dkt. 1 at 5.) 16 Petitioner’s second and third claims challenge the constitutionality of 17 California’s Three Strikes sentencing law. These are not novel claims. See Ewing 18 v. California, 538 U.S. 11, 30 (2003) (holding California’s Three Strikes law does 19 not violate the Eighth Amendment); Moore v. Horel, No. 02-0007, 2010 U.S. Dist. 20 LEXIS 63020, at *122 (E.D. Cal. June 23, 2010) (rejecting claim that California’s 21 Three Strikes law “is being administered in an unconstitutional manner because the 22 conviction rate for African-Americans is much higher than for other races”); People 23 v. Kilborn, 41 Cal. App. 4th 1325, 1328 (1996) (holding California’s Three Strikes 24 law is not so arbitrary as to violate substantive due process rights). 25 /// 26 /// 27 /// 28 /// 11 1 IV. 2 CONCLUSION 3 4 IT IS THEREFORE ORDERED that Petitioner’s petition for writ of habeas corpus be dismissed with prejudice as time-barred. 5 6 DATED: September 25, 2017 7 ___________________________________ CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE 8 9 10 Presented by: 11 12 13 ___________________________________ KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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