Pete Adams v. S. Hatton

Filing 7


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PETE ADAME1, 12 13 14 Case No. EDCV 16-2671-JAK (KES) Petitioner, v. S. HATTON, Warden, 15 Respondent. 16 ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE (1) DISMISSED WITH PREJUDICE AS UNTIMELY OR (2) DISMISSED WITHOUT PREJUDICE AS SUCCESSIVE 17 18 19 20 21 22 23 24 25 26 27 28 On December 8, 2016, Petitioner constructively filed a Petition for Writ of Habeas Corpus [“Petition”] in the Northern District of California. The case was transferred to this Court, as his Petition “challenges convictions he received in the Riverside County Superior Court, which lies in the Central District.” (Dkt. 3 [Order of Transfer].) The Court has screened the Petition consistent with its authority under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. For the reasons set forth below, the Court orders Petitioner to show 1 The case-initiating Petition is captioned with the name “Pete Adams,” but signed “Pete Adame.” Review of Petitioner’s inmate number and state court case history reveals that his true name is Pete Adame. 1 1 cause why the Petition should not be (1) dismissed with prejudice as untimely, or 2 (2) dismissed without prejudice as successive. 3 I. 4 PROCEDURAL HISTORY 5 The following facts are taken from the Petition, the Court’s own records, or 6 public records; where necessary, the Court takes judicial notice of the latter. See 7 Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject 8 to reasonable dispute because it … can be accurately and readily determined from 9 sources whose accuracy cannot reasonably be questioned.”); United States v. 10 Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of 11 its own records in other cases, as well as the records of an inferior court in other 12 cases.”); Porter v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010) (noting that it is 13 proper to take judicial notice of “any state court dockets or pleadings that have been 14 located (including on the Internet)”). 15 A. Petitioner’s Underlying Conviction. 16 On February 15, 1985,2 a jury found Petitioner guilty of second degree 17 murder and found true the allegation that Petitioner personally used a firearm 18 during the commission of the offense in violation of California Penal Code §§ 187 19 and 12022.5. (Petition at 2; See Adame v. Kane, Case No. CV 04-00650-ODW, 20 2011 WL 1155610, at *1 (C.D. Cal. Feb. 19, 2011), report and recommendation 21 accepted, 2011 WL 1135128 (C.D. Cal Mar. 28, 2011) [“Adame I”].) Petitioner 22 was sentenced to state prison for an aggregate term of seventeen years to life. 23 (Petition at 8.) 24 25 26 27 28 2 Petitioner claims that he was convicted and sentenced either in 1984 or in February 1983. (Petition at 1, 14.) The Court takes judicial notice of Adame I’s finding that Petitioner was convicted and sentenced on February 15, 1985. This date is supported by Petitioner’s state criminal records (Case No. CR22247) found on the California Court of Appeal’s website. 2 1 B. Petitioner’s Previous Federal Habeas Petitions. 2 Petitioner’s minimum eligible parole date was June 22, 1996. (Id.) Petitioner 3 has filed numerous state and federal habeas petitions challenging various parole 4 determinations. In 2004, Petitioner filed a § 2254 federal habeas petition 5 challenging a 2001 decision by the California Board of Parole Hearings to deny 6 parole. Adame I, 2011 WL 1155610, at *1. The District Court denied relief under 7 Swarthout v. Cooke, 562 U.S. 216 (2011) (while denial of parole does create a 8 liberty interest, but it is only a state interest and therefore does not trigger federal 9 constitutional protection). Id. at *2-3. 10 Petitioner filed a second § 2254 federal habeas petition in 2005, again 11 challenging the constitutionality of his 2004 parole denial. Adame v. Kane, Case 12 No. CV 05-00541-CBM, 2011 WL 1481400 (C.D. Cal Feb. 19, 2011), report and 13 recommendation accepted, 2011WL 1481390 (C.D. Cal Apr. 12, 2011) [“Adame 14 II”]. The Court again rejected this petition under Swarthout. Id. 15 Petitioner’s third § 2254 federal habeas petition was filed in 2009, 16 challenging his 2007 parole denial. Adame v. Curry, Case No. C 09-02523-SBA 17 (N.D. Cal. Mar. 23, 2011) [“Adame III”]. The District Court for the Northern 18 District of California also rejected his petition under Swarthout. (Id. at Dkt. 8 [order 19 dismissing petition].) 20 C. The Instant Habeas Petition. 21 Petitioner filed a recent state habeas petition in the Riverside Superior Court, 22 which was denied on December 15, 2015. (Petition at 3.) He then filed a petition in 23 the California Court of Appeal, which was summarily denied on March 22, 2016. 24 (Id. at 4.) Petitioner next filed a state habeas petition in the California Supreme 25 Court, which was denied on July 20, 2016. (Id.) Petitioner constructively filed this 26 habeas Petition on December 8, 2016. (Dkt. 1 at 6.) Petitioner alleges that his 27 claims were the same in each petition. (Id. at 3-4.) 28 3 1 II. 2 CLAIMS 3 Construing the Petition liberally, Petitioner appears to be making two claims. 4 First, Petitioner argues that the Supreme Court’s holding in Johnson v. United 5 States, __ U.S. __, 135 S. Ct. 2551 (2015)3, invalidates his sentence. Petitioner 6 contends that, like the residual clause of the Armed Career Criminal Act of 1984 7 (“ACCA”) found unconstitutional in Johnson, his indeterminate sentence is 8 unconstitutionally vague because Petitioner has no way of knowing if and when he 9 will be released. This contention also appears to include an argument challenging 10 the constitutionality of state parole determinations that rely on an inmate’s future 11 threat to society as justification for denying parole. (Petition at 14, “The [P]etitioner 12 has served his time under the rules according to law, and to say that he still posing 13 any future threat is a clear violation of his constitutional rights.”) 14 Alternatively, Petitioner argues that he has served the determinate portion of 15 his sentence, and that the rest should be invalidated. California law allows a 16 sentence of twenty years to life for first degree murder, and fifteen years to life for 17 second degree murder. Cal. Penal Code § 190(a).4 Petitioner contends that, because 18 he has been held past his determinate sentence of 15 years, “second degree murder 19 is being treated as if it was a First degree murder, and the definition remains the 20 same even though the crime is different.” (Petition at 14.) 21 22 23 24 25 26 27 28 3 The Supreme Court has ruled that Johnson applies retroactively. Welch v. United States, __ U.S. __, 136 S. Ct. 1257 (2016). 4 The same law was in place at the time of Petitioner’s conviction. See Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978); see also Deering’s Ann. Pen. Code § 190, p. 82 (1985 ed.). 4 1 III. 2 DISCUSSION 3 A. Timeliness. 4 1. 5 The Ninth Circuit has held that a district court has the authority to raise a 6 statute of limitations issue sua sponte when untimeliness is obvious on the face of a 7 habeas petition, and to summarily dismiss the petition on that ground pursuant to 8 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 9 Courts, as long as the Court “provides the petitioner with adequate notice and an 10 opportunity to respond.” Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); see 11 also Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). Applicable Law. 12 This action is subject to the Antiterrorism and Effective Death Penalty Act of 13 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that 14 AEDPA applies to cases filed after its effective date of April 24, 1996). AEDPA 15 provides as follows: 16 (d) (1) A 1-year period of limitation shall apply to an application for a 17 writ of habeas corpus by a person in custody pursuant to the judgment 18 of a State court. The limitation period shall run from the latest of-- 19 (A) the date on which the judgment became final by the 20 conclusion of direct review or the expiration of the time for seeking 21 such review; 22 (B) the date on which the impediment to filing an application 23 created by State action in violation of the Constitution or laws of the 24 United States is removed, if the applicant was prevented from filing 25 by such State action; 26 (C) the date on which the constitutional right asserted was 27 initially recognized by the Supreme Court, if the right has been newly 28 recognized by the Supreme Court and made retroactively applicable 5 1 to cases on collateral review; or 2 (D) the date on which the factual predicate of the claim or 3 claims presented could have been discovered through the exercise of 4 due diligence. 5 (2) The time during which a properly filed application for State post- 6 conviction or other collateral review with respect to the pertinent 7 judgment or claim is pending shall not be counted toward any period 8 of limitation under this subsection. 9 28 U.S.C. § 2244(d) (emphasis added). 10 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 11 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 12 (2009). The statute of limitations period generally runs from “the date on which the 13 judgment became final by the conclusion of direct review or the expiration of the 14 time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For those prisoners 15 whose convictions became final before AEDPA’s effective date, the one-year 16 period began running on April 25, 1996. Malcom v. Payne, 281 F.3d 951, 955 (9th 17 Cir. 2002). Accordingly, “unless a subsection of Section 2244(d) calls for a later 18 initiation of the limitations period,” state prisoners whose convictions were final 19 before April 25, 1996, had until April 24, 1997, to file a federal habeas petition. 20 Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001). 21 Alternatively, if the petitioner is relying on a newly created constitutional 22 right that has been made retroactive to cases on collateral review, the one-year 23 deadline does not begin to run until the date on which the new right was initially 24 recognized by the United States Supreme Court. See 28 U.S.C. § 2244(d)(1)(C). “In 25 order for a constitutional right newly recognized by the Supreme Court to delay the 26 statute of limitations the right must not only be newly recognized, but must also be 27 retroactively applicable to cases on collateral review.” Packnett v. Ayers, 2008 WL 28 4951230, at *4 (C.D. Cal. Nov. 12, 2008). The one-year statute of limitations “runs 6 1 from the date the right was initially recognized, even if the [Supreme] Court does 2 not declare that right to be retroactive until later.” Johnson v. Robert, 431 F. 3d 992, 3 992 (7th Cir. 2005) (citing Dodd v. United States, 545 U.S. 353 (2005)); see also 4 Mason v. Almager, 2008 WL 5101012 (C.D. Cal. Dec. 2, 2008) (citing Johnson and 5 Dodd). 6 2. 7 Analysis. a. Initial convictions and sentence. 8 The California Court of Appeal affirmed Petitioner’s conviction on direct 9 appeal on September 11, 1986. Petitioner’s conviction became final on December 10 10, 1986, when the California Supreme Court denied Petitioner’s petition for 11 review.5 Therefore, because Petitioner’s conviction became final before AEDPA’s 12 effective start date, his time for filing a § 2254 habeas petition expired on April 24, 13 1997. Petitioner has missed this deadline by approximately twenty years. 14 b. End of determinate sentence. 15 Petitioner’s minimum eligible parole date was June 22, 1996, after AEDPA’s 16 effective start date. (Petition at 8; Adame I, 2011 WL 1155610 at *1.) After that 17 date, Petitioner began serving his indeterminate sentence, subject to recurring 18 parole determinations. If Petitioner contends that his custody became unlawful 19 when it exceeded his determinate sentence, then Petitioner’s deadline to raise that 20 claim would have run from June 22, 1996, the date his indeterminate sentence 21 began. Petitioner has missed this June 22, 1997 deadline by approximately twenty 22 years as well.6 23 24 25 26 27 28 5 Petitioner claims that he did not seek direct appeal or file a petition for review. (Petition at 2-3.) The Court takes judicial notice from the California Appellate Court’s website that Petitioner did, in fact, file both. 6 The Court acknowledges that, barring any consideration of good time credits Petitioner may have received, Petitioner’s seventeen-year determinate sentence would have ended in 2002, not 1996. Even if this later date is used to analyze timeliness, Petitioner should have filed a § 2254 federal habeas petition 7 1 c. Applicability of Johnson. 2 Petitioner, however, appears to be invoking § 2244(b)(1)(C), which provides 3 that the one-year time limitation begins to run on the date that the Supreme Court 4 recognizes a new constitutional right that has been made retroactive on collateral 5 review. Petitioner contends that his state conviction and sentence for second degree 6 murder with a firearm enhancement is invalid under Johnson, 135 S. Ct. 2551. In 7 Johnson, the Supreme Court held that the “residual clause” 7 of the Armed Career 8 Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), a federal criminal statute, is 9 unconstitutionally vague under the Fifth Amendment. (Id.) Johnson was decided on 10 June 25, 2015. Accordingly, Petitioner had until June 25, 2016, one year after 11 Johnson was issued, to file a habeas petition based on that decision. See Robert, 12 431 F.3d at 992 (holding that the one-year AEDPA statute of limitations “runs from 13 the date the right was initially recognized, even if the [Supreme] Court does not 14 declare that right to be retroactive until later”); see, e.g., Williams v. United States, 15 2016 WL 2745814, at *10 (D. Hawai’I May 11, 2016) (“The one-year limitations 16 period for filing his present § 2255 motion [invoking Johnson] requires filing it on 17 or before June 25, 2016.”). 18 The Court need not, however, determine whether the Petition is timely in 19 light of this deadline and any statutory tolling, because the Johnson decision is 20 irrelevant. Petitioner’s state prison sentence was not enhanced under the ACCA’s 21 residual clause, nor was his conviction based on any state analogue of that federal 22 criminal statute. Thus, Johnson did not create a new due process right applicable to 23 24 25 26 27 28 challenging his indeterminate sentence in 2003, approximately fourteen years ago. 7 The ACCA provides for a sentence enhancement on defendants with three prior convictions of a “violent felony,” a term defined in part by 18 U.S.C. § 924(e)(2)(B)(ii)  commonly called the “residual clause”  as including any felony that “involves conduct that presents a serious potential of physical injury to another.” Johnson ruled that this definition was unconstitutionally vague. 8 1 Petitioner. See Renteria v. Lizarraga, 2016 WL 4650059, at *6 (C. D. Cal. Aug. 1, 2 2016), report and recommendation adopted Sept. 2, 2016 (“Petitioner was not 3 sentenced under ACCA’s ‘residual clause’ or even any similar state law equivalent. 4 Accordingly Johnson created no new due process right applicable to Petitioner.”); 5 Birdwell v. California, 2016 WL 5897780, at *2 (C.D. Cal. Oct. 5, 2016) (Johnson 6 irrelevant to petitioner’s state conviction for second degree felony murder). 7 Because Petitioner’s claims do not properly rely on the new constitutional 8 rule created in Johnson, Petitioner may not invoke § 2244(b)(1)(C) to overcome his 9 timeliness bar. Therefore, the instant Petition should be dismissed as untimely. 10 B. Successive Petitions. 11 1. 12 State habeas petitioners generally may file only one federal habeas petition 13 challenging a particular state conviction or sentence. See, e.g., 28 U.S.C. 14 § 2244(b)(1) (courts must dismiss a claim presented in a second or successive 15 petition when that claim was presented in a prior petition). “A habeas petition is 16 second or successive … if it raises claims that were or could have been adjudicated 17 on the merits” in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 18 1029 (9th Cir. 2009) (emphasis added). 19 20 Applicable Law. Section 2244(b)(2) provides a basis for pursuing a second or successive Section 2254 habeas petition if one of two exceptions applies, as follows: 21 (A) the applicant shows that the claim relies on a new rule of 22 constitutional law, made retroactive to cases on collateral review by 23 the Supreme Court, that was previously unavailable; or 24 (B)(i) the factual predicate for the claim could not have been 25 discovered previously through the exercise of due diligence; and 26 (ii) the facts underlying the claim, if proven and viewed in light of 27 the evidence as a whole, would be sufficient to establish by clear and 28 convincing evidence that, but for constitutional error, no reasonable 9 1 factfinder would have found the applicant guilty of the underlying 2 offense. 3 28 U.S.C. § 2244(b)(2). 4 Even when one of the two exceptions in Section 2244(b)(2) applies, state 5 habeas petitioners seeking relief in this Court must first obtain authorization from 6 the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. 7 § 2244(b)(3). The Ninth Circuit “may authorize the filing of the second or 8 successive [petition] only if it presents a claim not previously raised that satisfies 9 one of the two grounds articulated in § 2244(b)(2).” Burton v. Stewart, 549 U.S. 10 147, 153 (2007). 11 2. 12 Petitioner has filed three previous Section 2254 federal habeas petitions. It 13 appears that none of them, however, challenged his underlying conviction or 14 sentence. Rather, each challenged the constitutionality of separate instances in 15 which Petitioner was denied parole. Whether the instant Petition is construed as 16 challenging either Petitioner’s conviction and indeterminate sentence or further 17 denials of his parole eligibility, it is a successive petition that deprives this Court of 18 jurisdiction over its claims. Analysis. 19 The Supreme Court and the Ninth Circuit have interpreted the phrase 20 “second or successive” as a “term of art” derived from the concept of the “abuse of 21 the writ” doctrine. See Magwood v. Patterson, 561 U.S. 320, 336-37 (2010); Hill v. 22 Alaska, 297 F.3d 895, 896 (9th Cir. 2002). “That a prisoner has previously filed a 23 federal habeas petition does not necessarily render a subsequent petition “second or 24 successive.” Hill, 297 F.3d at 896. Under the Ninth Circuit’s precedent in Hill, 25 petitions challenging parole determinations that arose after a petitioner filed his first 26 habeas petition are not considered successive. Id. Because a parole determination 27 challenges the calculation of a petitioner’s release date, not the sentence itself, a 28 petition attacking a later parole denial was not successive to an earlier attack on the 10 1 underlying conviction. Id. The court in Hill determined that because claims relating 2 to the petitioner’s parole determinations could not have been included in earlier 3 petitions challenging his conviction and sentence, petitioner was not required to 4 secure the Ninth Circuit’s permission prior to filing his habeas petition in the 5 district court. Id. at 899 (emphasis added). In subsequent decisions, the Ninth 6 Circuit clarified that challenges to state decisions that affect the execution of 7 sentences (like parole denials and revocation of sentence decisions) can be brought 8 in a later petition “because such claims were not ripe for adjudication at the 9 conclusion of the prisoner’s first federal habeas proceeding.” United States v. 10 Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011).8 11 Here, the opposite scenario is presented. Petitioner has challenged several 12 separate parole determinations in federal court, but he never challenged his 13 underlying criminal conviction or sentence. Unlike the petitions in Hill and 14 Buenrostro, the claims raised in the instant Petition were ripe for adjudication at the 15 time of every previous federal petition. Petitioner raises two claims attacking his 16 underlying conviction: (1) imposing an indeterminate sentence is unconstitutionally 17 vague, and (2) the sentences for first degree and second degree murder are 18 unconstitutionally equivalent because they both carry the potential imposition of 19 indeterminate life sentences. (See Petition at 14.) The void-for-vagueness doctrine 20 has been a hallmark of constitutional law long before Petitioner’s conviction, 21 regardless of Petitioner’s appeal to the Supreme Court’s recent decision in Johnson. 22 See e.g., U.S. v. Batchelder, 442 U.S. 114, 123 (1979) (“[V]ague sentencing 23 24 25 26 27 28 8 In Magwood v. Patterson, the Supreme Court held that “where … there is a new judgment intervening between the two habeas petitions, an application challenging the new judgment is not second or successive.” Magwood, 561 U.S. 320, 341-42 (2010). Here, the conviction and sentence that Petitioner challenges has not been altered or disturbed. Magwood is inapposite. See Phillips v. Davey, 659 F. App’x 933, 934 (9th Cir. 2016) (“Because there is no amended judgment in this case, Magwood is inapposite.”). 11 1 provisions may pose constitutional questions if they do not state with sufficient 2 clarity the consequences of violating a given criminal statute.”). Similarly, any 3 constitutional argument raised by Petitioner’s second contention does not rely on 4 the holding in Johnson. Each of Petitioner’s claims could have been raised in his 5 previous petitions. See McNabb, 576 F.3d at 1029. 6 Therefore, to the extent the instant Petition challenges Petitioner’s underlying 7 conviction or sentence, it is successive. It would be an abuse of the writ to hold 8 otherwise. Allowing a Petitioner to first challenge parole determinations that extend 9 from his underlying conviction, then not deem “successive” later petitions that 10 finally challenge his underlying conviction, would not serve the AEDPA’s purposes 11 of finality in state criminal convictions and “streamlining federal habeas 12 proceedings.” Burton, 549 U.S. at 154; see also Calderon v. Thompson, 523 U.S. 13 538, 558 (1998) (“§ 2244(b) … is grounded in respect for the finality of criminal 14 judgments.”). 15 To the extent Petitioner challenges his most recent parole denial, the Petition 16 remains successive. Petitioner does not allege that he has been subject to an 17 additional denial of parole since the determination he challenged in his 2009 18 petition. While his claims are not the model of clarity, it seems Petitioner is 19 challenging the parole board’s authority to consider Petitioner’s past crimes to 20 determine his future risk to society. (Petition at 14.) That claim has been rejected on 21 the merits in every federal petition he has brought. (See Section II.A., supra.) 22 To the extent that Petitioner purports to rely on the new constitutional rule 23 created in Johnson as an exception under § 2224(b)(2), his argument may not be 24 asserted for the first time before the district court. Rather, Petitioner is required to 25 assert his grounds for making a second or successive petition before the Ninth 26 Circuit in a motion for leave to file a second or successive petition. 28 U.S.C. 27 § 2244(b)(3)(A). Thus, this Court lacks jurisdiction to make the initial 28 determination whether Petitioner qualifies to proceed with this successive petition. 12 1 IV. 2 CONCLUSION 3 On or before March 1, 2017, Petitioner is ordered to show cause why his 4 Petition should not be (1) dismissed with prejudice as untimely, or (2) dismissed 5 without prejudice as successive. 6 7 8 9 DATE: February 01, 2017 ____________________________________ KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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