Alvarez v. Ayers

Filing 18

ORDER BY JUDGE JEREMY FOGEL DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY (granting docket no. 8 ). (jflc2, COURT STAFF) (Filed on 9/30/2008)

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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**E-Filed 9/30/08**

ANGEL JESUS ALVAREZ, Petitioner, v. ROBERT AYERS, JR., Warden, Respondent.

Case No. C 06-5027 JF (PVT) ORDER1 DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY [Re: docket no. 8]

Petitioner Angel Jesus Alvarez ("Alvarez") was convicted in 2000 of aggravated sexual assault of a child, two counts of corporal injury of a child, and two counts of misdemeanor child endangerment. On May 26, 2000, the Santa Clara Superior Court sentenced Alvarez to a term of imprisonment of seventeen years to life. The California Court of Appeal affirmed the conviction on October 25, 2002. The California Supreme Court denied Alvarez's petition for review on January 15, 2003. Subsequently, Alvarez filed unsuccessful petitions for a writ of habeas corpus

This disposition is not designated for publication in the official reports.

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in the, Santa Clara Superior Court, the California Court of Appeal and the California Supreme Court. On August 21, 2006, Alvarez filed the instant federal habeas petition. Respondent Robert Ayers, Jr. ("Ayers") moves to dismiss the petition as untimely. The Court has considered the briefing submitted by the parties and the applicable law. For the reasons discussed below, the motion will be granted. I. BACKGROUND After his conviction, Alvarez was represented by court-appointed counsel in his direct appeal to the California Court of Appeal and to the California Supreme Court. Resp.'s Rep. Opp. To Mot. to Dismiss ("Resp.'s Br.") at 3. On January 15, 2003, the California Supreme Court denied Alvarez's petition for review. Ex. A. 4. Because Alvarez did not file a petition for writ of certiorari in the United States Supreme Court, his conviction became final on April 15, 2003, which gave him until April 15, 2004 to file a timely habeas corpus petition in this Court. See 28 U.S.C. § 2244(d). In December 2002, before his conviction became final, Alvarez wrote to several attorneys whom he considered retaining for future litigation, including Frank Prantil ("Prantil") and Gary Diamond ("Diamond"). In February 2003, Alvarez received a letter from Prantil, in which Prantil urged Alvarez to retain him immediately because a state habeas petition needed to be filed before March 15th. Ex. A.2 4. However, Prantil sent Alvarez a second letter in April 2003 stating that he had been mistaken about the filing deadline and that Alvarez would have until April 11, 2004 to file a petition. Ex. A 11-12. In June 2003, Alvarez retained Diamond (Ex. A 18) and Prantil to file petitions for writ of habeas corpus "through the three levels of the state courts."3 Ex. A. 24. Prior to being officially retained, Prantil and Diamond had agreed to work together on Alvarez's behalf. Ex. A 15-16. Prantil also agreed not to file any papers before Alvarez was able to read

"Ex. A. refers to evidence contained in Exhibit A, attached to the Petitioner's Response to the Motion to Dismiss. This language appears in the retainer agreement with Prantil. Ex. A 24. Diamond's retainer agreement provides that he will "file a Writ of Habeas Corpus through the state courts." Ex. A. 18. 2
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them. Ex. A 87. From June through September 2003, Prantil and Diamond did not communicate with each other effectively. Petr.'s Resp. to Mot. to Dismiss ("Petr.'s Br.") at 5; Ex. A 32-33. On September 11, 2003, Prantil sent Alvarez a letter, asserting that he wanted to file the state petition in the superior court "very soon," and stating that he preferred to draft the petition himself rather than have Diamond do it. Ex. A 32. He also discussed his litigation strategy, and predicted that a citation to In re Clark would not result in a procedural bar because "the rule is not consistently applied." 5 Cal. 4th 750 (1993); see Ex. A 32. In October 2003, on Prantil's recommendation, Alvarez hired private investigator Kenneth Addison ("Addison") to work with Prantil and Diamond. Alvarez claims that in November, the relationship between Prantil and Diamond deteriorated; Prantil told Alvarez that he refused to draft a habeas petition unless Alvarez fired Diamond or convinced Diamond to work with him. Petr.'s Br. at 5. On December 17, 2003, Prantil filed a petition for writ of habeas corpus in the Santa Clara Superior Court. The court denied the petition on January 14, 2004, and Prantil notified Alvarez one week later. Ex. A 36. Prantil stated that the next step would be for Diamond to file a petition in the state court of appeal on Alvarez's behalf. Id. In February 2004, Diamond arranged to meet personally with Alvarez in prison. However, Alvarez claims that both he and Addison had difficulty communicating with Diamond from February through June 2004. Petr.'s Br. At 6; Ex. A 37. Alvarez sought the assistance of another attorney to complete the habeas petition to the state court of appeal. Ex. A 61-62. In a July 2004 letter to Alvarez, Prantil emphasized to Alvarez that it was "imperative to file the petition with the court of appeal." Ex. A 67. He urged Alvarez to complete the investigation with Addison "quickly" so that the federal courts would not find that Alvarez had "not been diligent in conducting investigation," and dismiss the case without addressing the merits of the claim. Ex. A 61. In August 2004, Diamond told Alvarez that he was waiting to hear from the investigator before sending Alvarez a draft of his pleading, and agreed to meet with Alvarez soon to "discuss our progress." Ex. A 63. Alvarez learned from Prantil in September 2004 that Diamond had stipulated to a six3
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month suspension of his bar license. Ex. A 67-68. Shortly thereafter, Alvarez fired Diamond. In October 2004, Prantil wrote to Alvarez stating that "this is not [his] case" and that he would need additional payment to prepare a petition for the state court of appeal. Ex. A 71. Subsequently, Alvarez retained attorney Kent Russell to prepare and file his habeas petition in the state appellate court; that petition was filed on March 11, 2005 and was denied without comment on March 23, 2005. In April 2005, Prantil wrote to Alvarez, expressing dissatisfaction that Alvarez had "filed with the court of appeal on [his] own and without [Prantil's] help." Ex. A 90. He again urged Alvarez to "get on" Addison to complete the investigation so that they could file in the State Supreme Court. Ex. A 90. The filing deadline for Alvarez's federal habeas petition had passed nearly a year before (April 15, 2004); Prantil told Alvarez that Addison might need to show a federal court that he had been diligent in investigating the case in order to explain the delayed filing in the state supreme court. Ex. A 90. That month, Prantil wrote to Addison, asking him to be prepared to file a declaration describing his diligence in pursuing the investigation on Alvarez's behalf. Ex. A 92. On September 19, 2005, Prantil sent Alvarez a draft of the California Supreme Court habeas petition, followed by a second draft on October 14, 2005. Ex. A 100, 108. On November 7, Prantil sent a letter containing his legal strategy, and on December 29, 2005, Prantil provided Alvarez a fourth draft of the petition. Ex. A 149-51. The habeas petition finally was filed on January 12, 2006 in the California Supreme Court. On June 28, 2006, that court denied the petition, citing In re Clark. 5 Cal.4th 750; Ex. A 159. On July 6, 2006, Alvarez received a letter from Prantil in which Prantil included a copy of the California Supreme Court's denial. In that letter, Prantil asked if Alvarez wanted to retain him for litigation at the federal district court level. Prantil stated that Alvarez would need to sign a new retainer agreement and pay additional money. Ex. A 156. Prantil also informed Alvarez that he was no longer eligible to eligible to practice law in the state courts as a result of a recent decision by the State Bar Hearing Department, but that he was still eligible to practice law in federal court. Ex. A 157. 4
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Timeliness 1. Statute of Limitations

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires a state prisoner to seek federal habeas corpus relief within one year after the state conviction becomes final. 28 U.S.C. § 2244(d). The limitations period commences on the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct review includes the 90-day period within which a petitioner may file a petition for a writ of certiorari in the United States Supreme Court, even if the petitioner does not actually file such a petition. Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003) (citing Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999)). On January 15, 2003, the California Supreme Court denied Alvarez's petition for review. Since Alvarez did not file a petition for certiorari, the state proceedings became final on April 15, 2003. Thus, the deadline for Alvarez to file a petition for a writ of habeas corpus in federal court was April 15, 2004, one year later. Alvarez failed to file a federal habeas corpus petition by this date. 2. Equitable Tolling In certain circumstances, the one-year statute of limitations for filing a habeas petition may be equitably tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Bramble v. Duncans, 330 F.3d 1197, 1201(9th Cir. 2003). Though an attorney's ordinary negligence will not justify equitable tolling, an attorney's egregious misconduct may constitute an "extraordinary circumstance" warranting equitable tolling of the statute of limitations. Spitsyn, 345 F.3d at 800. However, as the Ninth Circuit cautions in Spitsyn, equitable tolling is justified in few cases. Id. at 799. Alvarez asserts that attorneys Prantil and Diamond engaged in egregious misconduct as his representatives and that their failure to file timely petitions on Alvarez's behalf effectively 5
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amounted to client abandonment. Alvarez relies heavily on Spitsyn, in which the Ninth Circuit allowed equitable tolling for extreme attorney misconduct. Spitsyn, 345 F.3d at 796. In that case, Spitsyn's mother retained an attorney to represent him in his federal writ proceedings nearly a year before the statute of limitations. The attorney never filed a federal petition. Weeks after the statute of limitations had expired, the attorney expressed regret for not following through with the case and returned Spitsyn's payment. However, he delayed an additional three months in returning Petitioner's file. Spitsyn was forced to file his own habeas petition, proceeding pro se, 226 days after the statute of limitations had run. Unlike the attorney in Spitsyn, none of the three attorneys retained by Alvarez abandoned him or refused to communicate with him during their employment. Prantil and Diamond, despite difficulty communicating with each other, communicated regularly with Alvarez, discussed legal strategy with him, and advised him on how to proceed. Prantil filed a habeas corpus petition with the superior court. Russell prepared and Alvarez filed a habeas corpus petitio with the state court of appeal, and Prantil filed a petition in the California Supreme Court. Each of the attorneys submitted drafts of their pleadings to Alvarez before filing, pursuant to his direction. Prantil and Alvarez also discussed a strategy be prepared in the event an untimely federal habeas petition had to be filed. It is clear from the record that Prantil and Diamond were negligent in their representation of Alvarez. However, this case does rise to the level of egregious misconduct described in Spitsyn, in which the attorney effectively abandoned his client and failed to provide the client with his file. Spitsyn, 345 F.3d at 796. Even more serious instances of negligence and attorney error have been found not to constitute "exceptional circumstances" sufficient to warrant equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir. 2002) (no tolling where attorney wrote a letter to petitioner stating wrong due date for federal habeas petition); Fry v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (no tolling where attorney miscalculated deadline for statute of limitations); Green v. White, 223 F.3d 1001 (9th Cir. 2000) (no tolling where counsel relied on inapplicable case). Moreover, unlike the attorney in Spitsyn, Prantil, Diamond, and Russell were not retained to file a federal habeas petition; all of the retainer 6
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agreements limited the attorneys' representation of Alvarez to state court proceedings. Ex. A 18, 24. Even in clear cases of negligence, "[r]etained counsel's failure to expeditiously file a state court collateral motion is decidedly not grounds for equitably tolling the AEDPA limitations period." Palladino v. Perlman, 269 F.Supp.2d 36 (E.D.N.Y. 2003). C. Merits4 1. Petitioner's Factual Assertions Ruby Rubio is the mother of the alleged victims, Amanda, age eight, and Anthony, age seven. Prior to the crime, Ruby was in a romantic relationship with Alvarez. Ruby occasionally allowed Alvarez to care for her children, and sometimes the children stayed with Alvarez overnight. In November 1996, Alvarez agreed to care for the children for several nights. When Alvarez returned the children to Ruby on November 19, 1996, Ruby noticed that Anthony's eyes were irritated. That night, when Ruby bathed the children, Ruby discovered bruises. Amanda complained of burning and irritation in her private areas. Later that night, Amanda told Ruby that when Alvarez gave her a bath or shower, he sometimes stuck his finger inside her. Ruby called the police. Amanda was examined at the Santa Clara Valley Medical Center. According to the nurse practitioner who examined Amanda, the bruises, abrasions on Amanda's face, legs, and the front area of her body were not consistent with normal childhood play. When Amanda was interviewed the next day, Amanda said that Alvarez had put chili in Anthony's eyes. She also stated that Alvarez had put his "pee-pee" in her mouth while she was lying down in Alvarez's van, that "nasty milk" came out, and that petitioner had given her "milk" from his "pee-pee" before. Amanda also stated that on the same occasion, Alvarez had touched his "peepee" to her "pee" and that he had touched her "pee" with his finger. Amanda told Ruby that she had not said anything before because she was scared; Alvarez had said that if she told anyone about the "spanking" it would be her fault if she and Anthony were taken away from their mother. Amanda also said that Alvarez threatened to hurt her and to hit her.

Although it has determined that the petition subject to dismissal is untimely, in the interest of completeness, the Court also considers the legal sufficiency of Petitioner's claim of factual innocence. 7
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On December 5, 1996, Amanda returned to the hospital for additional photographs and testing. Ruby reported that Amanda had developed a vaginal discharge. When doctors cultured the discharge, they determined that Amanda had chlamydia organism growing in her vagina, and that based on the known incubation period for chlamydia, Amanda had been infected less than three days before November 20, 2006. At trial, Anthony testified that Alvarez had put chili in his eyes and had done so more than once. Anthony also said that Alvarez had put chili on his penis. Amanda confirmed all of her statements from the interview. She also stated that Alvarez had made her drink his "milk" several times and that these acts took place in Alvarez's van and in the house. Alvarez testified and denied committing the charged crimes. He argued that during that weekend, he had purchased fresh Serrano chilies at the grocery store and that Anthony had found the chilies and put them in his pocket. Later, when Anthony rubbed his eyes, they became irritated, and Anthony complained of pain. Alvarez also claimed that Ruby had told him to "whup their asses" if Amanda and Anthony got out of control; he testified that over the weekend, he had used his belt to spank Amanda once and Anthony twice. Alvarez additionally testified that he had never experienced symptoms of chlamydia. He stated that he normally had severe bronchitis once a year and that it was sometimes treated with antibiotics. An expert in sexually transmitted diseases testified that Alvarez had had chlamydia, but could not determine whether he had chlamydia trachomatis, a sexually transmitted disease, or chlamydia pneumoniae, a respiratory infection that causes pneumonia and bronchitis. 2. Actual Innocence Doctrine Alvarez asserts that he has made a colorable showing of factual innocence sufficient to excuse any procedural default. In particular, Alvarez argues that his claim of actual innocence is supported by (1) the government's failure to disclose that the alleged victim, Amanda, was infected with chlamydia until it was too late for him to be excluded as the alleged perpetrator; (2) the government's failure to produce the test results of the red blanket found in his van; (3) his penile swab exam of June 16, 2997 was negative for the detection of chlamydia; and (4) statements obtained from various witnesses by Addision. Petr.'s Br. At 9-10. 8
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The United States Supreme Court has held that a petitioner's "otherwise-[time] barred claims [may be] considered on the merits ... if his claim of actual innocence is sufficient to bring him within the `narrow class of cases ... implicating a fundamental miscarriage of justice.'" Majoy v. Roe, 296 F.3d 770, 775 (9th Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, (1995)). Application of this exception is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993). In order to pass through this gateway, a petitioner must show that, in light of all the evidence, including evidence not introduced at trial, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327. The petitioner must support his allegations of constitutional error with "new reliable evidencewhether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial." Id. at 324. Alvarez has failed to present evidence sufficient to implicate a "fundamental miscarriage of justice." Alvarez claims that the government's failure to disclose Amanda's chlamydia infection sooner denied him "the opportunity to prove that he did not have chlamydia at the time of the alleged criminal conduct." Petr.'s Br. At 9. However, at trial an expert in sexually transmitted disease testified that Alvarez "had had chlamydia but could not say what type [he] had had." Pet. for Writ of Habeas Corpus ("Writ of H.C."). Alvarez also claims that if the blanket taken from his van had been tested, and if the test was negative for his semen, "that result would have served to materially corroborate [his] claim of innocence." Petr.'s Br. at 10. At trial, the parties stipulated that the police seized various items from Alvarez's van, including a sleeping bag and a pair of underwear, which tested negative for the presence of semen. Writ of H.C. at 7. A negative test result on the red blanket thus would not provide additional proof of Alvarez's innocence. Alvarez next argues that evidence of his negative penile swab culture test for chlamydia demonstrates his innocence. This argument was raised on appeal to the California Court of

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Appeal and rejected.5 Attachment A at 126; Resp.'s Br. at 10. Finally, Alvarez claims that statements obtained from various witnesses support his claim of factual innocence. Those statements assert that Alvarez "compassionately cared" for the victims, and "loved the children as if they were his own." Writ of H.C. at 2; Writ of H.C., Ex. L. Additional statements opine that the victims' mother was "unfit," and "vindictive," and that she "turned on [Alvarez]." Writ of H.C. at 24-26. Such statements do not constitute "credible . . . new, reliable" evidence sufficient to support Alvarez's claim of factual innocence. See Schlup, 513 U.S. at 324. IV. ORDER Respondent's motion to dismiss Alvarez's petition for Writ of Habeas Corpus is GRANTED. The clerk of the Court shall enter judgment and close the file.

Dated: September 30, 2008

_____________________________ JEREMY FOGEL United States District Judge

The Court stated, "it is unlikely that evidence that defendant tested negative for chlamydia on June 18, 1997, would have conviced the jury that defendant did not have chlamydia in November 1996. This is especially true given that evidence was introduced, via a blood analysis, that defendant had had chlamydia in the past, either chlamydia trachomatis, which is what Amanda had, or chlamydia pneumonia. Given the other evidence of defendant's guilt, including Amanda and Anthony's testimony, it is not reasonably probable that the jury would have reached a different result had they considered the results of defendant's June 18, 1997 penile swab test." People v. Alvarez, Santa Clara Super. Ct. No. 198084 (Oct. 28, 2002); Attachment A
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"Attachment" refers to documents attached to the Respondent's Brief. 10

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This Order has been served upon the following persons:

Violet May Lee [e-mail], [e-mail], [e-mail], [e-mail] Scott L. Tedmon [e-mail], [e-mail]

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