Givens v. Seibel

Filing 44

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/13/2020 RECOMMENDING claims 1-11 in petitioner's 7 amended petition for writ of habeas corpus be dismissed as time-barred; claim 12 in petitioner's amended petition for writ of habeas corpus be summarily dismissed; and this case be closed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K) Modified on 11/16/2020 (Yin, K).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANCOIS P. GIVENS,

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Petitioner,

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No. 2:17-cv-0328 KJM CKD P

v.

FINDINGS AND RECOMMENDATIONS

ROBERT NEUSCHMID,

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Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. §2254. On November 3, 2020, the district court judge assigned to this

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case granted respondent’s June 1, 2018 motion to dismiss. In particular, the court held that all

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claims in petitioner’s February 26, 2018 amended petition for writ of habeas corpus that do not

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“relate back” to claims in petitioner’s original petition are dismissed as time-barred.
Under Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure, an otherwise untimely

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claim presented in an amended pleading “relates back to the date of the original pleading when . .

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. the . . . claim arose out of the conduct, transaction, or occurrence set out—or attempted to be set

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out—in the original pleading.” A claim in an amended petition “does not relate back . . . when it

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asserts a new ground for relief supported by facts that differ in both time and type from those the

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original pleading. . .” Mayle v. Felix, 545 U.S. 644, 650 (2005). Instead, a new claim in an

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amended pleading must be tied to a claim asserted in the original by “a common core of operative

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facts.” Id. at 664.

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In his original petition, petitioner asserts that his appellate counsel either should not have

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raised, or should not have been permitted to raise, claims concerning miscalculation of sentence

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credit and the amount due for a “booking fee.” Instead, petitioner claims his appeal should have

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proceeded pursuant to People v. Wende, 25 Cal.3d 436, 441–442 (1979) which identifies the

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process required in California when appellate counsel indicates there are no potentially

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meritorious claims to raise on appeal.
In his amended petition, petitioner’s first 11 claims do not involve petitioner’s appeal.

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Therefore, the court agrees with respondent that none of those claims “relate back” to the claim

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presented in petitioner’s original petition and must be dismissed.

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Generally speaking, petitioner reasserts the claim presented in his original petition in

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claim 12 of his amended petition and respondent appears to concede that claim 12 at least relates

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back. However, the court finds that claim 12 is subject to summary dismissal under Rule 4 of the

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Rules Governing Section 2254 cases, because claim 12 does not provide a basis for habeas corpus

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relief.

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On direct appeal, appellate counsel argued that petitioner was entitled to 356 days good

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conduct sentence credit instead of the 53 days identified by the trial court. Appellate counsel also

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argued that a “booking fee” identified in the abstract of judgment should be reduced by $1.00.

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Error was admitted by The People of the State of California, and relief was granted. Petitioner

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asserts it was error under California law for counsel to present these claims at the Court of Appeal

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because the claims were not presented in the Superior Court first. Petitioner asserts the actions of

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appellate counsel denied plaintiff the process outlined in People v. Wende. Had counsel not

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raised the sentence credit and booking fee issues, petitioner asserts he would have had the

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opportunity to file a pro se brief in which he would have raised several issues.

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The California Supreme Court’s decision in Wende followed the United States Supreme

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Court’s decision in Anders v. California, 386 U.S. 738 (1967). In that case, the Supreme Court

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identified certain procedures which must be followed when appellate counsel finds there are no
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appealable issues. One of the procedures is that the defendant himself be permitted the

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opportunity to raise issues. Id. at 744.

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Here, nothing under federal law required that counsel not raise the issues he did on appeal

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and instead trigger the Wende process. Because a writ of habeas corpus can only be granted for

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violations of federal law, 28 U.S.C. §2254(a), petitioner’s claim 12 should be summarily

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dismissed.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Claims 1-11 in petitioner’s amended petition for writ of habeas corpus be dismissed as

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time-barred.
2. Claim 12 in petitioner’s amended petition for writ of habeas corpus be summarily

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dismissed.

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3. This case be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed

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within fourteen days after service of the objections. The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 13, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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