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)

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