(HC) Turner v. Covello

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 7/29/22 RECOMMENDING that respondent's motion to dismiss 15 be granted. Petitioner's petition for a writ of habeas corpus be dismissed; and all other pending motions 21 and 25 be denied as moot. Motions 15 , 21 , 25 referred to Judge Troy L. Nunley. Objections due within 14 days.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DEWAYNE LEE TURNER,

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Petitioner,
FINDINGS AND RECOMMENDATIONS

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No. 2:21-CV-1328-TLN-DMC-P

v.
PATRICK COVELLO,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. Petitioner asserts various challenges to a 1996 judgment

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of not guilty by reason of insanity in the Sacramento County Superior Court. Respondent moves

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for dismissal of the petition on three grounds: (1) petitioner has not met the custody requirement

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of § 2254 when he filed the petition, (2) the petition is untimely, and (3) petitioner’s claims are

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unexhausted. Resp.’s Mot. to Dism. (MTD), Doc. 15. For the reasons set forth here, the Court

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will recommend that respondent’s motion to dismiss be granted.

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I. BACKGROUND

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Petitioner was charged in December 1994 with first degree burglary in violation of

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California Penal Code § 459. See MTD, Ex. 1, Doc. 16-1; Sacramento Sup. Ct. Case No.

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94F04029. By court trial on March 1, 1996, petitioner was found not guilty by reason of insanity

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and civilly committed to the California Department of State Hospitals (DSH). Id. Petitioner was

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ultimately released from DSH custody in April 2016 after the state court found insufficient

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evidence to extend his commitment. Id.

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Three years after his release from DSH, petitioner filed two habeas petitions in the
Sacramento County Superior Court challenging the judgment in Case No. 94F04029. See Am.

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Pet., Ex. A, Doc. 8 at 29-30. Citing People v. Villa, 45 Cal.4th 1063 (2009) and California Penal

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Code § 1473, the state court denied both petitions because petitioner was no longer in custody

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pursuant to the judgment in that case.1 See id.

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In January 2020, petitioner filed a federal habeas petition in this court, again

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challenging the judgment in Case No. 94F04029. Turner v. Unknown, E.D. Cal. Case No. 2:20-

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cv-00201-KJM-CKD. As with his state habeas petitions, petitioner’s federal petition was

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dismissed in August 2020 because he was no longer in custody pursuant to the judgment in that

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case.

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Petitioner then filed the instant federal habeas petition in July 2021 and is

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proceeding on a first amended petition. Once more, petitioner asserts various challenges to the

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judgment in Case No. 94F04029, including ineffective assistance of counsel, new evidence

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showing actual innocence, and improper exclusion of evidence at trial.

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Section 1473 states that a person “unlawfully imprisoned or restrained” may
pursue habeas relief. Villa held that a petitioner whose state probation period had ended and who
then was placed in immigration deportation proceedings was not in actual or constructive custody
for habeas purposes. Id. at 1072.
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II. DISCUSSION
A.

Petitioner Does Not Meet the In Custody Requirement
Under 28 U.S.C. § 2254(a), a federal court “shall entertain an application for a writ

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of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only

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on the ground that he is in custody in violation of the Constitution or the laws or treaties of the

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United States.” The Supreme Court has interpreted § 2254 as requiring that the habeas petitioner

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be “‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”

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Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (citation omitted). The custody

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requirement of § 2254 is jurisdictional. Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.

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1998) (citation omitted). Here, because petitioner is no longer in custody pursuant to the

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judgment in Case No. 94F04029, he does not meet the “in custody” requirement of § 2254.

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B.

The Petition is Untimely

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Moreover, the petition is untimely. Federal habeas corpus petitions must be filed

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within one year from the later of: (1) the date the state court judgment became final; (2) the date

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on which an impediment to filing created by state action is removed; (3) the date on which a

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constitutional right is newly- recognized and made retroactive on collateral review; or (4) the

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date on which the factual predicate of the claim could have been discovered through the exercise

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of due diligence. See 28 U.S.C. § 2244(d)(1).

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There is no dispute that petitioner’s 2021 federal habeas petition challenging the

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1996 judgment was filed well beyond the limitations period. Conceding this, petitioner suggests

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a later trigger date is warranted based on new evidence of actual innocence. However, he does

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not identify the alleged new evidence (he states only that it was “evidence from the

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investigator”), does not show that it was unavailable or unknown to him at the time of trial, and

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does not demonstrate due diligence. Petitioner then suggests that he is entitled to equitable

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tolling. Under Ninth Circuit authority, the “AEDPA limitations period may be tolled” when it is

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“equitably required.” Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011). The “threshold

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necessary to trigger equitable tolling [under AEDPA] is very high.” Bills v. Clark, 628 F.3d

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1092, 1097 (9th Cir. 2010) (alteration in original). A court may grant equitable tolling only
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where “ ‘extraordinary circumstances’ prevented an otherwise diligent petitioner from filing on

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time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). The petitioner “bears a heavy

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burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the rule.’ ”

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Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015).
Petitioner has not demonstrated the requisite “extraordinary circumstances.” He

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asserts that he was prevented from filing a timely habeas petition because he did not have access

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to legal materials. Pl.’s Opp’n at 7.2 However, he does not identify those materials or explain

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how they were relevant to the timely presentation of his claims. Petitioner also states that he has

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a mental illness and “a comprehesion [sic] and reading disability and thoughts.” Am. Pet. at 13,

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Doc. 8 at 24. Yet petitioner submits no evidence of the nature of his illness or cognitive

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impairments, and he fails to show how it affected his ability to pursue his claims. The record, on

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the other hand, reveals that petitioner had been diagnosed with “Other Specified Schizophrenia

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Spectrum Disorder” and various substance use disorders. See MTD, Ex. 2, Doc. 16-2 at 9-10. In

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fact, petitioner’s mental illness had stabilized enough over the years that he had been released to

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an outpatient treatment program three times: (1) once for eight months (May 26, 1998 to

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February 19, 1999); (2) then for thirty-two months (February 9, 2001 to October 16, 2013), and

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(3) finally for two months (June 29, 2011 to September 17, 2011). Furthermore, a “Physician’s

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Progress Note” dated May 2016 from DSH’s Napa State Hospital shows that, at least since

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September 2012, petitioner had not exhibited any psychotic symptoms that were present at the

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time of his offense. See MTD, Ex. 1, Doc. 16-2 at 7. Petitioner was also observed to be

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“coherent, logical & goal directed,” and his “attention & concentration were good.” See id., Doc.

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16-2 at 9. Thus, none of petitioner’s bare contentions satisfy the high bar for equitable tolling.

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Though titled a “Traverse,” this filing is petitioner’s opposition to the pending
motion to dismiss.
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C.

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Petitioner’s Claims are Unexhausted
Lastly, petitioner’s claims are unexhausted. Under 28 U.S.C. § 2254(b), the

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exhaustion of available state remedies is required before claims can be granted by the federal

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court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small,

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315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003).3 A petitioner

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may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with

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an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the

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petitioner filed the habeas petition in federal court no state remedies are available to the

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petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v.

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Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted).

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It appears that petitioner has not yet exhausted his habeas claim in the state courts,

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considering he filed a habeas petition only in the Sacramento County Superior Court. There is no

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indication that petitioner has presented his claim to either the California Court of Appeal or the

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California Supreme Court. Therefore, even if the petition is timely, it is completely unexhausted

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and subject to dismissal.

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Acknowledging as much, petitioner requests a stay-and-abeyance of these

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proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Am. Pet. at 13, Doc. 8 at 9-11,

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24. The court may stay a federal habeas application if petitioner demonstrates (1) good cause for

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the failure to previously exhaust the claims in state court, (2) the claims at issue potentially have

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merit, and (3) petitioner has been diligent in pursuing relief. See id. at 278; Mena v. Long, 813

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F.3d 907, 910-12 (9th Cir. 2016) (applying the stay and abeyance procedure to wholly

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unexhausted petitions).

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Rhines does not define what constitutes good cause for failure to exhaust, and the

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Ninth Circuit has not established a precise definition beyond holding that the test for “good

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cause” is less stringent than an “extraordinary circumstances” standard. See Blake v. Baker, 745

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F.3d 977, 980 (9th Cir. 2014); see also Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)

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Claims may be denied on the merits notwithstanding lack of exhaustion. See 28
U.S.C. § 2254(b)(2).
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(“Although examination into [petitioner’s] failure to exhaust was proper, and indeed, necessary,

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under Rhines, we hold that the application of an “extraordinary circumstances” standard does not

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comport with the “good cause” standard prescribed by Rhines.”). The good cause requirement

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should be interpreted in light of the Supreme Court’s admonition that stays be granted only in

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“limited circumstances” so as not to undermine AEDPA’s twin goals of reducing delays in the

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execution of criminal sentences and streamlining federal habeas proceedings by increasing a

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petitioner's incentive to exhaust all claims in state court. See Wooten v. Kirkland, 540 F.3d 1019,

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1024 (9th Cir. 2008) (citing Rhines, 54 U.S. at 276–77). “[G]ood cause turns on whether the

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petitioner can set forth a reasonable excuse, supported by sufficient evidence,” to justify the

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petitioner’s failure to exhaust the unexhausted claim in state court. Blake, 745 F.3d at 982.

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“While a bald assertion cannot amount to a showing of good cause, a reasonable excuse,

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supported by evidence to justify a petitioner’s failure to exhaust, will.” Id.

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To establish good cause, Petitioner once more relies on new evidence of

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innocence, his mental illness, cognitive impairments, and lack of access to his legal materials.

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For the reasons discussed, the Court finds these reasons insufficient, even under the less stringent

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good cause standard. But even if Petitioner was able to establish good cause for his failure to

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exhaust his claims, granting a Rhines stay would be futile if Petitioner’s claims are otherwise

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untimely. See Espana v. Hetton, 2019 WL 13036409, at *4 (C.D. Cal. Sept. 9, 2019) (“Even if

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Petitioner was able to establish good cause for his failure to exhaust his claims, granting a Rhines

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stay would be futile as his claims are untimely under federal law.”), report and recommendation

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adopted, 2019 WL 5538420 (C.D. Cal. Oct. 24, 2019). Because the petition is also untimely,

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Petitioner is not entitled to a stay-and-abeyance.

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III. CONCLUSION

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Based on the foregoing, the undersigned recommends that:

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Respondent’s motion to dismiss, Doc. 15, be granted;

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Petitioner’s petition for a writ of habeas corpus be dismissed; and

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All other pending motions, Docs. 21 and 25, be denied as moot.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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

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Dated: July 29, 2022
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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