Shaw v. Diaz

Filing 21

ORDER GRANTING RESPONDENTS 14 MOTION TO DISMISS AND PETITIONERS 19 MOTION TO SUBSTITUTE NEW WARDEN AS RESPONDENT AND DENYING 13 PETITIONERS MOTION TO JOIN HABEAS AND CIVIL RIGHTS CASES. ***Civil Case Terminated. Signed by Judge Claudia Wilken on 1/16/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/16/2014)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

7
8

ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS AND
PETITIONER’S MOTION TO
SUBSTITUTE NEW WARDEN
AS RESPONDENT AND
DENYING PETITIONER’S
MOTION TO JOIN HABEAS
AND CIVIL RIGHTS CASES

Petitioner,

5
6

No. C 13-1739 CW (PR)

JOHN SHAW aka JOHN HSIA,

v.
TIM PEREZ, Acting Warden,
Respondent.1
________________________________/

9
Doc. Nos. 13, 14, and
19

United States District Court
For the Northern District of California

10
11
12

Petitioner, a state prisoner at the Correctional Institute

13

for Men (CIM) in Chino, California, has filed this pro se petition

14

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

15

challenging his criminal conviction.

16

ordered Respondent to show cause why the petition should not be

17

granted.

18

Respondent filed a motion to dismiss the petition as untimely and

19

as procedurally defaulted.

20

opposition to the motion, Respondent filed a reply and Petitioner

21

filed a second response to the motion, which the Court accepts as

22

a sur-reply.

23

civil rights case with this habeas action, doc. no. 13, and a

24

motion to substitute as Respondent the warden of the prison where

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26
27
28

Doc. no. 11.

On June 5, 2013, the Court

On August 5, 2013, in lieu of an answer,

Doc no. 14.

Petitioner filed an

Petitioner also filed a motion to join his pending

1

Pursuant to Petitioner’s request and in accordance with
Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil
Procedure, the Clerk of the Court is directed to substitute Acting
Warden Tim Perez as Respondent because he is Petitioner's current
custodian.
1

1
2

Petitioner currently resides, doc. no. 19.
For the reasons stated below, the Court GRANTS Respondent’s

3

motion to dismiss and Petitioner’s motion to substitute the new

4

warden as Respondent and DENIES Petitioner’s motion to join his

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civil rights case with this habeas case.

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7

BACKGROUND
In 2005, as a result of a series of fraudulent real estate

8

transactions, a Santa Clara jury convicted Petitioner of three

9

counts of grand theft, two counts of forgery, three counts of

United States District Court
For the Northern District of California

10

using personal information without authorization, three counts of

11

recording a false instrument, one count of conspiracy, one count

12

of attempting to dissuade a witness and one count of false

13

application for a driver’s license.

14

et al., no. H03050, at 1 (Cal. App. Ct. Jan. 14, 2008)

15

(unpublished opinion).

16

sentenced Petitioner to fourteen years and four months in prison.

17

Id. at 1-2.

18

affirmed the judgment of conviction.

19

2008, the California Supreme Court denied review.

20

Ex. 1, Ex. A, People v. Shaw,

On June 22, 2006, the trial court

On January 14, 2008, the California Court of Appeal
Id. at 15.

On April 9,
Ex. 2.

On January 8, 2009, Petitioner filed a habeas petition in

21

this Court, case number C 09-0077 CW (PR).

22

the Court granted Respondent’s motion to dismiss the petition

23

because none of the claims had been exhausted in state court.

24

Ex. 3.

25

On September 17, 2010,

On February 4, 2013, Petitioner filed two habeas petitions in

26

the California Supreme Court, case no. S208491 and case no.

27

S208492.

28

the first petition with a citation to In re Robbins, 18 Cal. 4th

On April 10, 2013, the California Supreme Court denied

2

1

770, 780 (1998), Ex. 5, and denied the second petition with

2

citations to Robbins, People v. Duval, 9 Cal. 4th 464, 474 (1995),

3

and In re Swain, 34 Cal. 2d 300, 304 (1949), Ex. 7.

4
5

On April 17, 2013, Petitioner filed the instant petition in
this Court.

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7

DISCUSSION
I. Motion to Dismiss

8

A. Statute of Limitations

9

The Antiterrorism and Effective Death Penalty Act of 1996

United States District Court
For the Northern District of California

10

(AEDPA) became law on April 24, 1996, and imposed for the first

11

time a statute of limitations on petitions for a writ of habeas

12

corpus filed by state prisoners.

13

challenging non-capital state convictions or sentences must be

14

filed within one year of the latest of the date on which: (A) the

15

judgment became final after the conclusion of direct review or the

16

time passed for seeking direct review; (B) an impediment to filing

17

an application created by unconstitutional state action was

18

removed, if such action prevented the petitioner from filing;

19

(C) the constitutional right asserted was recognized by the

20

Supreme Court, if the right was newly recognized by the Supreme

21

Court and made retroactive to cases on collateral review; or

22

(D) the factual predicate of the claim could have been discovered

23

through the exercise of due diligence.

24

Petitions filed by prisoners

28 U.S.C. § 2244(d)(1).

The one-year period generally will run from “the date on

25

which the judgment became final by conclusion of direct review or

26

the expiration of the time for seeking such review.”

27

§ 2244(d)(1)(A).

28

writ of certiorari in the United States Supreme Court, the

28 U.S.C.

If a petitioner does not file a petition for a

3

1

limitations period will begin running against him the day after

2

the date on which the time to file such a petition expired.

3

Gonzalez v. Thaler, 132 S. Ct. 641, 653-654 (2012).

4

Petitioner’s conviction became final on July 8, 2008, ninety days

5

after the California Supreme Court denied direct review, when the

6

time for filing a petition for writ of certiorari expired.

7

Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where

8

petitioner did not file petition for certiorari, his conviction

9

became final ninety days after the California Supreme Court denied

Here,

United States District Court
For the Northern District of California

10

review).

11

to file his federal habeas petition.

12

F.3d 1243, 1246 (9th Cir. 2001).

13

filed on April 17, 2013, therefore, is untimely unless Petitioner

14

is entitled to statutory or equitable tolling.

15

Thus, absent tolling, Petitioner had until July 8, 2009,
Patterson v. Stewart, 251

Petitioner’s federal petition,

1. Statutory Tolling

16

The one-year statute of limitations is tolled under

17

§ 2244(d)(2) for the “time during which a properly filed

18

application for State post-conviction or other collateral review

19

with respect to the pertinent judgment or claim is pending.”

20

28 U.S.C. § 2244(d)(2).

21

statutory tolling.

22

the statute because it was not a state proceeding.

23

Walker, 533 U.S. 167, 172-73 (2001) (properly filed application

24

for federal habeas review does not toll limitations period).

25

Petitioner’s state habeas cases did not toll the limitations

26

period because they were filed in 2013, after the limitations

27

period had expired.

28

(9th Cir. 2003) (AEDPA does not permit the reinitiation of the

However, Petitioner is not entitled to

His 2009 federal habeas petition did not toll
See Duncan v.

See Ferguson v. Palmateer, 321 F.3d 820, 823

4

1

limitations period that has ended before the state petition is

2

filed).

3

after the July 8, 2009 statutory deadline and, absent equitable

4

tolling, his petition is time-barred.

5
6

Thus, Petitioner filed this petition almost four years

2. Equitable Tolling
Petitioner argues that he is entitled to equitable tolling.

7

The Supreme Court has determined that § 2244(d) is subject to

8

equitable tolling in appropriate cases.

9

S. Ct. 2549, 2560 (2010).

Holland v. Florida, 130

“[A] petitioner is entitled to

United States District Court
For the Northern District of California

10

equitable tolling only if he shows (1) that he has been pursuing

11

his rights diligently, and (2) that some extraordinary

12
13
14
15

circumstance stood in his way and prevented timely filing.”
at 2562 (internal quotation marks omitted).

Id.

The prisoner must

show that “the extraordinary circumstances were the cause of his
untimeliness and that the extraordinary circumstances made it
impossible to file a petition on time.”

Ramirez v. Yates, 571

16
F.3d 993, 997 (9th Cir. 2009) (internal quotation marks and
17
citations omitted).

Where a prisoner fails to show “any causal

18
connection” between the grounds upon which he asserts a right to
19
20
21

equitable tolling and his inability timely to file a federal
habeas application, the equitable tolling claim will be denied.
Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005).

22

Once a petitioner is notified that his petition is subject to

23

dismissal based on AEDPA’s statute of limitations and the record

24

indicates that the petition falls outside the one-year time

25

period, the petitioner bears the burden of demonstrating that the

26

equitable principles apply.

27

(9th Cir. 2002).

Smith v. Duncan, 297 F.3d 809, 814

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5

1

In his opposition,2 Petitioner states that the following

2

circumstances prevented him from timely filing his state petition:

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(1) on February 17, 2009, a Santa Clara County jail official

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confiscated Petitioner’s legal materials; (2) Petitioner was

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transferred to another Santa Clara County jail facility that had

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no law library or related services; (3) from May 2009 to September

7

2009, Petitioner was housed at San Quentin State Prison and, from

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September 2009 to August 2010, he was housed at High Desert State

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Prison, where he did not have access to his legal materials or the

United States District Court
For the Northern District of California

10

law library; (4) from December 2010 to December 2011, Petitioner

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was housed at the California Medical Facility State Prison (CMF),

12

where he only had one hour per week in the law library and he was

13

not provided with a magnifying glass to help his vision

14

impairment; and (5) from December 2011 to the present, Petitioner

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is housed at CIM, where he has been ejected from the law library,

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experienced delays in the copying service, been restricted in the

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number of materials he can copy and was assaulted by another

18

inmate which caused him to be moved to another yard.

19

Respondent argues that these circumstances are the ordinary

20

circumstances of prison life that do not warrant equitable

21

tolling.

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exhibit, some of Petitioner’s legal materials were removed from

Respondent points out that, based upon Petitioner’s own

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2

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25
26
27
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Petitioner’s opposition is submitted under penalty of
perjury. Therefore, the Court may consider Petitioner’s
statements in the opposition that are from his own personal
knowledge and that are admissible in evidence. See Schroeder v.
McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (verified
complaint may be used as an opposing affidavit under Rule 56,
provided it is based on personal knowledge and sets forth specific
facts admissible in evidence).
6

1

his cell at the Santa Clara County jail because Petitioner had

2

more than the allotted allowance of papers and that he was allowed

3

an extra bag of papers that he selected.

4

opposition, Petitioner submits a statement signed by two witnesses

5

on February 17, 2009 that an officer took one “fifty-gallon” bag

6

of legal documents from his cell.

7

Opp. Ex. B.

With his

Id.

In Espinoza-Matthews v. California, 432 F.3d 1021, 1027 (9th

8

Cir. 2005), the Ninth Circuit held that the extraordinary

9

circumstances necessary for equitable tolling were shown when the

United States District Court
For the Northern District of California

10

petitioner was denied access to all of his legal materials for

11

approximately one year.

12

to expect [a habeas petitioner] to prepare and file a meaningful

13

petition on his own within the limitations period’ without access

14

to his legal file.”

15

Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (allegations

16

that petitioner was denied access to legal files during two

17

temporary transfers that lasted eighty-two days, if borne out by

18

further fact-finding, satisfied the extraordinary circumstances

19

requirement for equitable tolling).

20

full access to legal materials will not provide a perpetual

21

excuse, as shown in Waldron-Ramsey, where the court disallowed

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equitable tolling because the petition was filed 340 days late,

23

and the petitioner failed to cooperate with a reasonable prison

24

policy that limited access by allowing the prisoner to retain

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three boxes of legal materials and have the remainder of the legal

26

materials in storage and available on request.

27

Pacholke, 556 F.3d. 1008, 1013-14 (9th Cir. 2009).

28

ordinary prison limitations such as lack of access to the law

The court noted that it is “‘unrealistic

Id. at 1028 (citations omitted); see also

7

However, an impediment to

Waldron-Ramsey v.
Furthermore,

1

library and copier are not extraordinary nor do they make it

2

impossible for an inmate to file a petition in a timely manner.

3

Ramirez, 571 F.3d at 998.

4

exception to swallow the rule.

5

Concluding otherwise would permit the
Id.

The circumstances here are more similar to those in Ramirez

6

and Waldron-Ramsey than to Espinoza-Matthews and Lott.

7

Petitioner’s claim that his legal materials were confiscated for

8

four years and seven months is belied by his own evidence and

9

statements.

The inmate grievance form submitted with Petitioner’s

United States District Court
For the Northern District of California

10

opposition indicates that some of his papers were taken from him

11

because he had more than the allotted allowance of papers and that

12

he was allowed an extra bag of papers that he selected.

13

Ex. B.

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materials was returned to him.

15

filing his petition, it can be inferred that his legal papers were

16

returned to him some time after May 2009, when he left Santa Clara

17

County jail custody for San Quentin State Prison.

18

Petitioner did not include the lack of his legal materials after

19

he was transferred to CMF in December 2010 as an impediment to

20

filing his petition.

21

that he only had one hour per week access to the law library and

22

he was not provided with a magnifying glass.

23

listed impediments to filing at CIM, where he has been housed

24

since December 2011, are that he was ejected from the law library,

25

he experienced delay in copying materials, he was restricted in

26

the number of pages he could copy and he was assaulted by another

27

inmate which caused him to be moved to another yard.

See Opp.,

Petitioner does not indicate when his bag of legal
From his list of impediments to

Specifically,

His listed impediments to filing at CMF are

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8

See Opp. at 3.

See id.

His

1

Petitioner’s reasons for failing to file his petition after

2

his transfer to CMF in December 2010 represent the ordinary

3

limitations of prison life and not the extraordinary circumstances

4

warranting equitable tolling.

5

assuming that Petitioner did not have his legal materials from

6

February 2009 through December 2010, and that equitable tolling

7

applies to this period, the petition, filed on April 17, 2013,

8

would still not meet the one-year statute of limitations.

9

See Ramirez, 571 F.3d at 998.

Even

Long-term denial of access to a prison law library may

United States District Court
For the Northern District of California

10

constitute an “extraordinary circumstance” warranting equitable

11

tolling.

12

(equitable tolling warranted where prisoner could not conduct

13

research regarding preliminary claims because he was denied access

14

to library for over one year).

15

that the alleged long-term denial of access to the law library was

16

“the cause of his untimeliness” and “made it impossible [for him]

17

to file a petition on time.”

18

417 F.3d 1034-35.

19

early years of his incarceration, he lacked access to a law

20

library, he admits that, after December 2010, he did have access,

21

even if it was for fewer hours than he would have liked.

22

Furthermore, Petitioner fails to identify what he needed to

23

research in the law library and the causal connection between his

24

inability to research and his failure to file his petition for

25

four years.

26

access to a law library does not support his argument for

27

equitable tolling.

Jones v. Blanas, 393 F.3d 918, 929-30 (9th Cir. 2004)

However, the petitioner must show

Ramirez, 571 F.3d at 997; Gaston,

Although Petitioner states that, during the

Therefore, Petitioner’s argument that he lacked

28
9

1

Petitioner also argues that the denial of access to his legal

2

materials by a Santa Clara County jail official constituted a

3

state-created impediment to filing under 28 U.S.C.

4

§ 2244(d)(1)(B).

5

filed one year after “the date on which the impediment to filing

6

an application created by State action in violation of the

7

Constitution or the laws of the United States is removed, if the

8

applicant was prevented from filing by such State action.”

9

However, based on the discussion above in relation to equitable

This statute provides that a petition may be

United States District Court
For the Northern District of California

10

tolling, Petitioner has failed to establish that State action

11

impeded the filing of his state petition for four years.

12

Therefore, Petitioner’s argument that § 2244(d)(1)(B) applies to

13

this petition is unpersuasive.

14

Furthermore, Petitioner’s other reasons for denying

15

Respondent’s motion to dismiss are without merit.

16

he argues that Respondent’s motion to dismiss should be denied

17

because it is untimely by one day and that Respondent changed the

18

date the statute of limitations started to run by “fraudulently

19

filing” a petition for a writ of certiorari without Petitioner’s

20

knowledge.

21

For instance,

Because Petitioner cannot overcome the fact that his federal

22

petition was filed approximately four years after the expiration

23

of the statute of limitations, Respondent’s motion to dismiss

24

based on untimeliness is GRANTED.

25

B. Procedural Default

26

Respondent also argues that the petition must be dismissed

27

because it is procedurally defaulted.

28
10

1

The doctrine of procedural default bars a federal habeas

2

court from reviewing a claim rejected by a state court “if the

3

decision of [the state] court rests on a state law ground that is

4

independent of the federal question and adequate to support the

5

judgment,” Coleman v. Thompson, 501 U.S. 722, 729 (1991), unless

6

the petitioner can show cause for the failure to properly present

7

the claim and actual prejudice, or that the failure to consider

8

the claim would result in a fundamental miscarriage of justice,

9

Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977).

United States District Court
For the Northern District of California

10

Petitioner’s state petitions were rejected by the California

11

Supreme Court with citations to In re Robbins, 18 Cal. 4th 770,

12

780 (1998).

13

denied as untimely and, thus, is procedurally defaulted from

14

federal habeas review.

15

1131 (2011).

16

A citation to Robbins signals that the petition was

See Walker v. Martin, 131 S. Ct. 1120,

Petitioner argues that California’s rules for filing a timely

17

state habeas petition are not sufficiently independent and

18

adequate to support a finding that his petition is procedurally

19

defaulted.

20

in Walker, 131 S. Ct. at 1125, 1131.

21
22
23

However, the Supreme Court has rejected this argument

Petitioner also argues that he has shown cause and prejudice
to overcome the default.
A federal court will only review a claim disposed of on an

24

independent and adequate state ground if the petitioner shows

25

either “cause and prejudice” or “miscarriage of justice.”

26

McClesky v. Zant, 499 U.S. 467, 494 (1991).

27

prejudice” analysis, the petitioner must show (1) cause: that some

28

objective factor impeded efforts to raise the claim at the
11

Under a “cause and

1

appropriate proceeding, and (2) prejudice: that the impediment

2

worked to the petitioner’s actual and substantial disadvantage,

3

with errors of constitutional dimensions.

4

does not meet the standard for “cause and prejudice,” a federal

5

court may still review the claim if a “miscarriage of justice”

6

occurred.

7

“miscarriage of justice” exception only applies if the petitioner

8

claims actual innocence.

9

Id.

If the petitioner

Sawyer v. Whitley, 505 U.S. 333, 339 (1992).

The

Coleman, 501 U.S. at 748.

As cause for his default, Petitioner refers to his underlying

United States District Court
For the Northern District of California

10

claims of constitutional violations at his trial.

11

However, cause for a procedural default turns on whether the

12

petitioner can show that an objective factor external to the

13

defense impeded efforts to comply with state procedural rules.

14

Murray v. Carrier, 477 U.S. 478, 488 (1986).

15

show how an objective factor impeded his ability to file his

16

petitions in a timely manner.

17

sentence reference to his ineffective assistance of counsel claim

18

as satisfying the cause requirement is conclusory and insufficient

19

to meet his burden of establishing cause.

20

Opp. at 7-8.

Petitioner fails to

Furthermore, Petitioner’s one-

Petitioner also argues that a fundamental miscarriage of

21

justice excuses his default.

22

claims of actual innocence are rarely successful because they

23

require “the petitioner to support his allegations of

24

constitutional error with new reliable evidence—whether it be

25

exculpatory scientific evidence, trustworthy eyewitness accounts,

26

or critical physical evidence—that was not present at trial.”

27

Schlup v. Delo, 513 U.S. 298, 324-25 (1995).

28

show that “it is more likely than not that no reasonable juror

The Supreme Court has explained that

12

The petitioner must

1

would have convicted him in the light of the new evidence.”

2

at 326.

3

therefore, he fails to meet the demanding standard to establish a

4

fundamental miscarriage of justice.

Id.

Petitioner offers no new evidence of his innocence;

5

In summary, the petition is procedurally defaulted and

6

Petitioner has not established cause and prejudice to excuse the

7

default and has not met the standard for showing that he is

8

actually innocent.

9

granted based on grounds of procedural default as well as

United States District Court
For the Northern District of California

10

timeliness.

11

Therefore, Respondent’s motion to dismiss is

II. Other Motions

12

Because the petition is dismissed, Petitioner’s motion to

13

have it joined with his civil rights action is denied as moot.

14

Petitioner’s request to have the warden at CIM substituted as

15

Respondent is granted.

16

III. Certificate of Appealability

17

The Court finds that no certificate of appealability (COA) is

18

warranted in this case.

19

where the petition was dismissed on procedural grounds has two

20

components, one directed at the underlying constitutional claims

21

and one directed at the district court’s procedural holding.”

22

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

23

district court denies a habeas petition on procedural grounds

24

without reaching the prisoner’s underlying constitutional claim, a

25

COA should issue when the prisoner shows, at least, that jurists

26

of reason would find it debatable whether the petition states a

27

valid claim of the denial of a constitutional right and that

28

jurists of reason would find it debatable whether the district

“Determining whether a COA should issue

13

“When the

1

court was correct in its procedural ruling.”

2

each of these components is a “threshold inquiry,” the federal

3

court “may find that it can dispose of the application in a fair

4

and prompt manner if it proceeds first to resolve the issue whose

5

answer is more apparent from the record and arguments.”

6

485.

Id. at 484.

Because

Id. at

7

For the reasons discussed in this Order, Petitioner has not

8

shown that jurists of reason would find it debatable whether the

9

Court is correct in its procedural ruling that the petition is

United States District Court
For the Northern District of California

10

untimely and that Petitioner is not entitled to statutory or

11

tolling and that the petition is procedurally defaulted.

12

Accordingly, a COA is DENIED.

13

CONCLUSION

14

Based on the foregoing, the Court orders as follows:

15

1. Petitioner’s motion to join his civil rights action with

16
17

this petition is denied as moot.

Doc. no. 13.

2. Petitioner’s motion to substitute the warden of CIM as

18

Respondent is granted.

19

substitute Tim Perez, Acting Warden of CIM, as Respondent.

20

no. 19.

21

The Clerk of the Court is directed to

3. Respondent’s motion to dismiss is granted.

Doc.

Doc. no. 14.

22

The Clerk is directed to enter judgment and close the case.

23

4. This Order terminates docket numbers 13, 14 and 19.

24

IT IS SO ORDERED.

25
26

Dated:

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

1/16/2014

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