Shaw v. Diaz

Filing 21


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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 25 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 5 civil rights case with this habeas case. 6 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. 6 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 28 5 1 In his opposition,2 Petitioner states that the following 2 circumstances prevented him from timely filing his state petition: 3 (1) on February 17, 2009, a Santa Clara County jail official 4 confiscated Petitioner’s legal materials; (2) Petitioner was 5 transferred to another Santa Clara County jail facility that had 6 no law library or related services; (3) from May 2009 to September 7 2009, Petitioner was housed at San Quentin State Prison and, from 8 September 2009 to August 2010, he was housed at High Desert State 9 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 11 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 15 is housed at CIM, where he has been ejected from the law library, 16 experienced delays in the copying service, been restricted in the 17 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. 22 exhibit, some of Petitioner’s legal materials were removed from Respondent points out that, based upon Petitioner’s own 23 2 24 25 26 27 28 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 22 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 25 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. 14 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 28 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 27 28 14

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