Rettman v. Fisher

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/17/2017 RECOMMENDING respondent's 10 motion to dismiss be granted; and this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN RETTMAN, 12 Petitioner, 13 14 No. 2:16-cv-0885 JAM KJN P v. FINDINGS & RECOMMENDATIONS RAYTHEL FISHER,1 15 Respondent. 16 17 I. Introduction 18 Petitioner is a state prisoner, proceeding without counsel. Respondent moves to dismiss 19 this action as barred by the statute of limitations. Petitioner filed an opposition, and respondent 20 filed a reply. As set forth below, the undersigned recommends that the motion to dismiss be 21 granted. 22 II. Legal Standards Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 23 24 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 25 petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth 26 Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under 27 28 1 Respondent notes that the proper spelling of respondent’s first name is “Raythel,” which the court adopts herein. (ECF No. 10 at 1.) 1 1 Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 2 (1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority 3 under Rule 4. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that “the time during which a properly filed application for 19 State post-conviction or other collateral review with respect to the pertinent judgment or claim is 20 pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). Generally, 21 this means that the statute of limitations is tolled during the time after a state habeas petition has 22 been filed, but before a decision has been rendered. Nedds v. Calderon, 678 F.3d 777, 780 (9th 23 Cir. 2012). However, “a California habeas petitioner who unreasonably delays in filing a state 24 habeas petition is not entitled to the benefit of statutory tolling during the gap or interval 25 preceding the filing.” Id. at 781 (citing Carey v. Saffold, 536 U.S. 214, 225-27 (2002)). 26 Furthermore, the AEDPA “statute of limitations is not tolled from the time a final decision is 27 issued on direct state appeal and the time the first state collateral challenge is filed because there 28 is no case ‘pending’ during that interval.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), 2 1 overruled on other grounds by Carey, 536 U.S. at 214. In Carey, the United States Supreme 2 Court held that the limitation period is statutorily tolled during one complete round of state post- 3 conviction review, as long as such review is sought within the state’s time frame for seeking such 4 review. Id., 536 U.S. at 220, 222-23. State habeas petitions filed after the one-year statute of 5 limitations has expired do not revive the statute of limitations and have no tolling effect. 6 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the 7 reinitiation of the limitations period that has ended before the state petition was filed”); Jiminez v. 8 Rice, 276 F.3d 478, 482 (9th Cir. 2001). 9 III. Chronology 10 11 For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows: 12 1. On August 28, 1998, petitioner pled no contest to first degree murder, attempted 13 second degree robbery, and conspiracy to commit robbery. (Respondent’s Lodged Document 14 (“LD”) 1.) On December 21, 1998, petitioner was sentenced to an indeterminate state prison term 15 of twenty-nine years to life. (LD 1, 11 (Reporter’s Transcript on Appeal at 63-64, 82).) 16 17 2. Petitioner filed an appeal. On October 28, 1999, the California Court of Appeal for the Third Appellate District affirmed the conviction. (LD 2.) 18 19 3. On November 24, 1999, petitioner filed a petition for review in the California Supreme Court. (LD 3.) The California Supreme Court denied the petition on January 19, 2000. (LD 4.) 4. On June 17, 2015,2 petitioner filed his first petition for writ of habeas corpus in the 20 21 Placer County Superior Court. (LD 5.) On July 16, 2015, the superior court denied the petition. 22 (LD 6.) The superior court denied the petition as untimely, citing In re Robbins, 18 Cal. 4th 770, 23 780 (1998), and In re Clark, 5 Cal. 4th 750, 765 (1993). (LD 6.) The superior court also found 24 that petitioner could have presented his claims on direct appeal, and that, even if the court 25 considered the merits of his claims, petitioner failed to set forth a prima facie case for relief. (Id.) 26 27 28 2 All of petitioner’s state court filings were given benefit of the mailbox rule. See Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (under the mailbox rule, the petition is deemed filed when handed to prison authorities for mailing). 3 1 5. On August 12, 2015, petitioner filed a petition for writ of habeas corpus in the 2 California Court of Appeal for the Third Appellate District. (LD 7.) On September 3, 2015, the 3 appellate court denied the petition without comment or citation. (LD 8.) 4 6. On October 15, 2015, petitioner filed a petition for writ of habeas corpus in the 5 California Supreme Court. (LD 9.) On February 17, 2016, the California Supreme Court denied 6 the petition without comment or citation. (LD 10.) 7 7. On April 14, 2016, petitioner constructively filed the instant federal petition. See Rule 8 3(d) of the Federal Rules Governing Section 2254 Cases. 9 IV. Statutory Tolling 10 Under 28 § 2244(d)(1)(A), the limitations period begins running on the date that 11 petitioner’s direct review became final or the date of the expiration of the time for seeking such 12 review. Id. 13 On January 19, 2000, the California Supreme Court denied petitioner’s petition for review 14 on direct appeal. Petitioner then had ninety days, or until April 18, 2000, to file a petition for writ 15 of certiorari with the U.S. Supreme Court. See Sup. Ct. R. 13. Because petitioner did not file a 16 petition for writ of certiorari, AEDPA’s one-year statute of limitations began to run the next day, 17 on April 19, 2000, and expired on April 19, 2001. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th 18 Cir. 1999) (holding that AEDPA’s one-year limitations period begins to run on the date “when 19 the period within which the prisoner can petition for a writ of certiorari from the United States 20 Supreme Court expires[.]”). In other words, petitioner was required to file his petition for federal 21 habeas relief by April 19, 2001. 22 The statute of limitations period expired on April 19, 2001. Petitioner did not file any 23 state court petition prior to the expiration of the limitations period. Rather, all of petitioner’s 24 habeas petitions filed in state court were filed after the limitations period expired. State habeas 25 petitions filed after the one-year statute of limitations has expired cannot revive the statute of 26 limitations and have no tolling effect. Ferguson, 321 F.3d at 823. Thus, petitioner’s habeas 27 petitions filed in state court in 2015 provide no tolling. 28 //// 4 1 Petitioner did not file his federal petition until April 14, 2016, over fourteen years and 2 eleven months after the limitations period expired. Thus, petitioner failed to file his federal 3 petition within the one year statute of limitations period. 4 V. Later Accrual Date 5 In his opposition, petitioner appears to seek a later accrual date under 28 § 2244(d)(1)(C). 6 Petitioner argues that because his state habeas petitions asserted claims based on People v. 7 Vargas, 59 Cal. 4th 635, 640 (2014),3 and People v. Chiu, 59 Cal. 4th 155 (2014) (aider and 8 abettor cannot be found guilty of first degree murder under the “natural and probable 9 consequence” theory), the state courts improperly found his petitions were untimely filed. 10 Petitioner contends that Vargas and Chiu created newly-recognized constitutional rights that 11 should be retroactively applied to his petition. Respondent counters that because Vargas and 12 Chiu are California state cases, and not United States Supreme Court decisions newly recognizing 13 and retroactively applying a constitutional right, such state cases cannot delay the start of the 14 AEDPA limitations period. (ECF No. 18 at 3.) 15 If a claim is based upon a constitutional right that is newly recognized and applied 16 retroactively to habeas cases by the United States Supreme Court, the one-year limitations period 17 begins to run on the date which the new right was initially recognized by the Supreme Court. 28 18 U.S.C. § 2244(d)(1)(C). “In order for a constitutional right newly recognized by the Supreme 19 Court to delay the statute of limitations the right must not only be newly recognized, but must 20 also be retroactively applicable to cases on collateral review.” Packnett v. Ayers, 2008 WL 21 4951230, at *4 (C.D. Cal. Nov. 12, 2008). The one-year statute of limitations “runs from the date 22 the right was initially recognized, even if the [Supreme] Court does not declare that right to be 23 24 25 26 27 28 3 In Vargas, the California Supreme Court held that it was inconsistent with the “spirit of the Three Strikes law” to treat two crimes “tried in the same proceeding[,] . . . committed during the same course of criminal conduct, . . . based on the same act, committed at the same time, [and] against the same victim” as separate strikes under California’s three-strikes law. Vargas, 59 Cal. 4th at 638-39. It also noted, however, that the facts of that case were an “extreme situation” and that even when charges are tried in the same proceeding, “such convictions can nevertheless constitute two separate strikes because the Three Strikes law does not require that prior convictions, to qualify as strikes, be brought and tried separately.” Vargas, 59 Cal. 4th at 638 (citation omitted). 5 1 retroactive until later.” Johnson v. Robert, 431 F. 3d 992, 992 (7th Cir. 2005) (citing Dodd v. 2 United States, 545 U.S. 353, 358-60 (2005)); see also Mason v. Almager, 2008 WL 5101012 3 (C.D. Cal. Dec. 2, 2008) (citing Johnson and Dodd). Petitioner’s argument is unavailing. Both Vargas and Chiu involved state law issues that 4 5 were resolved by a state supreme court, and cannot be relied upon for a later accrual date under 6 AEDPA. See 28 U.S.C. § 2244(d)(1)(c). Only the United States Supreme Court can recognize a 7 new rule of constitutional law for the purposes of 28 U.S.C. § 2244(d)(1)(C). See Dodd, 545 U.S. 8 at 358-60 (construing identical language in 28 U.S.C. § 2255 as expressing “clear” congressional 9 intent that delayed accrual is inapplicable unless the United States Supreme Court itself has made 10 the new rule retroactive). See also Weathers v. Adams, 2017 WL 749028 at *3 (E.D. Cal. Feb. 11 27, 2017) (Chiu cannot provide later accrual of federal limitations period); Shavers v. Fox, 2017 12 WL 467841 at *4 (N.D. Cal. Feb. 3, 2017) (Vargas cannot provide later accrual of federal 13 limitations period). Thus, the California Supreme Court’s holdings in Vargas4 and Chiu5 offer 14 4 15 16 17 18 19 20 21 In any event, respondent properly argues that Vargas does not apply. In Vargas, the California Supreme Court held that California trial courts are required to dismiss one of defendant’s two prior strike convictions at sentencing if those convictions were based on the same single act against a single victim. Vargas, 59 Cal. 4th at 637. In other words, two prior convictions arising out of a single act against a single victim cannot constitute two strikes under the Three Strikes law. Vargas, 59 Cal. 4th at 637. But here, petitioner was not alleged to have suffered any prior conviction strikes. (LD 1.) In addition, “[a] federal court may not issue a writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (alleged violation of state sentencing statute). Here, Vargas did not apply federal constitutional law. Rather, it addressed only state sentencing law; specifically, interpretation of the California Three Strikes Law. Id. at 645-49. Therefore, petitioner’s claim that his sentence is improper under Vargas does not implicate a federal constitutional right. 5 22 23 24 25 26 27 28 Moreover, as argued by respondent, Chiu offers petitioner no relief because petitioner was not convicted of first degree murder based solely on the natural and probable consequences doctrine. Rather, petitioner pled no contest to first degree felony murder. Although aiding and abetting can be a concept in felony murder where a co-participant in a robbery or burglary commits the actual killing, see bracketed alternative in CALCRIM 540B, it is not a required basis for conviction on felony murder. People v. Cavitt, 33 Cal 4th 187, 197-99 (2004). In any event, the potential for aiding and abetting in a felony murder conviction is not based on the aider and abettor committing actions with the natural and probable consequence of murder, which was, until Chiu, a theory of conviction for aider and abettor first degree murder unto itself. Felony murder was expressly held outside the ambit of its ruling. Chiu, 59 Cal. 4th at 166 (“Our holding in this case does not affect or limit an aider and abettor’s liability for first degree felony murder under section 189.”). 6 1 petitioner no federal habeas relief.6 2 VI. Equitable Tolling 3 The limitations period may be equitably tolled where a habeas petitioner establishes two 4 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 5 circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631 6 (2010). Petitioner has the burden of showing facts entitling him to equitable tolling. Espinoza- 7 Matthews v. People of the State of California, 432 F.3d 1021, 1026 (9th Cir. 2005); Miranda v. 8 Castro, 292 F.3d 1063, 1065 (9th Cir. 2002). The threshold necessary to trigger equitable tolling 9 is very high, “lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 10 1008, 1011 (9th Cir. 2009). Equitable tolling may be applied only where a petitioner shows that 11 some external force caused the untimeliness. Id. 12 Petitioner did not seek equitable tolling. But he fails to demonstrate that extraordinary 13 circumstances beyond his control prevented him from timely filing his federal petition. Rather, 14 petitioner states that he “avoided piecemeal presentation of his claims until the elucidation of the 15 Chiu and Vargas rulings by the California Supreme Court in order to consolidate the issues of 16 merit that were potentially time-barred.” (ECF No. 14 at 3-4.) Petitioner’s statement suggests he 17 mistakenly, yet intentionally, waited to file the instant petition. In addition, petitioner failed to 18 demonstrate that he was diligent from April 19, 2000, when the limitations period began, and 19 April 19, 2001, when the limitations period expired. Petitioner’s diligence in 2015 does not 20 provide equitable tolling for the limitations period which had already expired. Petitioner fails to 21 allege facts suggesting he is entitled to equitable tolling for the almost fifteen year delay in filing 22 6 23 24 25 26 27 28 But even assuming, arguendo, that Vargas and Chiu were appropriately and retroactively applied, the instant petition remains untimely-filed. Vargas was decided on July 10, 2014, after Chiu was decided. Using July 11, 2014, as the new accrual date for the statute of limitations period, petitioner did not file his first state habeas petition until June 17, 2015. By June 17, 2015, 341 days of the limitations period would have expired. The limitations period would be tolled during the pendency of his state habeas petitions, until February 17, 2016, the date the California Supreme Court denied his petition. The limitations period would begin running again the next day, February 18, 2016, and would expire on Sunday, March 13, 2016, 24 days later. Because the 24th day fell on a Sunday, petitioner would have had until March 14, 2016 to file the instant petition. However, petitioner did not file the instant petition until April 14, 2016, over a month after the limitations period would have expired. 7 1 the instant petition. Accordingly, the undersigned finds that petitioner has not met his burden of 2 demonstrating the existence of grounds for equitable tolling. 3 VII. Evidentiary Hearing 4 Petitioner requested an evidentiary hearing. The decision to grant an evidentiary hearing 5 in a federal habeas case is left to the sound discretion of the district courts. Schiro v. Landrigan, 6 550 U.S. 465 (2007). When a habeas petitioner makes “a good-faith allegation that would, if true, 7 entitle him to equitable tolling” the motion for an evidentiary hearing should be granted. Laws v. 8 Lamarque, 351 F.3d 919, 921 (9th Cir. 2003). But a federal evidentiary hearing is unnecessary if 9 the petitioner’s claim can be resolved on the existing record. Totten v. Merkle, 137 F.3d 1172, 10 1176 (9th Cir. 1998). In addition, conclusory allegations, unsupported by specific facts, do not 11 warrant an evidentiary hearing. Williams v. Woodford, 384 F.3d 567, 589 (9th Cir. 2002) (citing 12 Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). “[A] petitioner’s statement, even if 13 sworn, need not convince a court that equitable tolling is justified should countervailing evidence 14 be introduced.” Laws, 351 F.3d at 924. 15 As set forth above, even if extraordinary circumstances did exist, petitioner was not 16 diligent in pursuing his habeas litigation, because he waited over fourteen years before filing the 17 instant petition. Thus, the court finds it is not necessary to hold an evidentiary hearing. 18 VIII. Conclusion 19 Accordingly, IT IS HEREBY RECOMMENDED that: 20 1. Respondent’s motion to dismiss (ECF No. 10) be granted; and 21 2. This action be dismissed. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 27 he shall also address whether a certificate of appealability should issue and, if so, why and as to 28 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 8 1 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 2 § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after 3 service of the objections. The parties are advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 5 F.2d 1153 (9th Cir. 1991). 6 Dated: April 17, 2017 7 8 /rett0885.mtd.hc.sol 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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