Kocak v. Spearman

Filing 34

ORDER Overruling 33 Petitioner's Objections; Adopting 30 the Report and Recommendation and Granting 11 Respondent's Motion to Dismiss. IT IS HEREBY ORDERED: 1. Petitioner's objections [Doc. No. 33] to the magistrate judge's report and recommendation are OVERRULED; 2. The findings and conclusions of the magistrate judge presented in the report and recommendation are [Doc. No. 30] ADOPTED in their entirety; 3. Respondent's Motion to Dismiss [Doc. No. 11] is GRANTED; 4. Petitioner's certificate of appealability is DENIED. Signed by Judge John A. Houston on 3/30/2017.(All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John Ivan Kocak,

Case No. 15-cv-02815 JAH(JLB)
Petitioner,

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v.

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ORDER OVERRULING
PETITIONER’S OBJECTIONS [Doc.
No. 33]; ADOPTING THE REPORT
AND RECOMMENDATION [Doc.
No. 30] AND GRANTING
RESPONDENT'S MOTION TO
DISMISS [Doc. No. 11]

M.E. Spearman, Warden,

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Respondent.

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INTRODUCTION
Petitioner John Ivan Kocak (“Petitioner”), a state prisoner appearing pro se, filed a
Petition for Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. (See
Doc. No. 1). Pending before the Court is Respondent’s Motion to Dismiss on the ground
that Petitioner’s claim is barred as untimely under 28 U.S.C. § 2244(d), the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitations. (See Doc. No.
11). The Honorable Jill L. Burkhardt, United States Magistrate Judge, issued a Report and
Recommendation (“Report”), recommending the Court grant Respondent’s Motion to
Dismiss. (See Doc. No. 30). Petitioner filed objections to the Report. (See Doc. No. 33).
After a careful consideration of the parties’ submissions, along with the entire record of

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this matter, this Court OVERRULES Petitioner’s objections, ADOPTS the magistrate

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judge’s report, and GRANTS Respondent’s motion to dismiss.

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BACKGROUND

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On May 3, 1996, a jury in San Diego County Superior Court convicted Petitioner of

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burglary, robbery, various sex crimes, false imprisonment, and vehicle theft. (See Lodg.

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12-5 at 1, 12-7 at 2). Petitioner was sentenced to life in prison. Id. Petitioner appealed his

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conviction. (See Lodg. 26-3 at 24). On March 18, 1998, the California Court of Appeal

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affirmed. Id. On June 24, 1998, the California Supreme Court denied review. (See Lodg.

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12-2).

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Petitioner filed a petition for writ of habeas in the Superior Court of California, San

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Diego County on June 15, 1999. (See Lodg. 26-1 at 17-19). Plaintiff alleged he was

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factually innocent of the charged crimes involving one of the victims, denied effective

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assistance of counsel, and prejudiced by the testimony of an expert witness as well as by

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the failure to conduct a new DNA test. Id. Plaintiff alleged that because an expert witness

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of the San Diego Police Forensic Lab (the expert) was under investigation for multiple

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felony counts and later convicted, she was not a credible witness. Id. The Superior Court

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denied relief on July 8, 1999. Id.

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On July 22, 1999, Petitioner appealed this denial to the California Court of Appeal,

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Fourth Appellate District, Division One. (See Lodg. 26-1 at 1). The Court of Appeal denied

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relief on the merits on November 24, 1999. (See Lodg. 26-2 at 1-2). The Court of Appeal

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held that Petitioner’s claims for prosecutorial misconduct were barred because Petitioner

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failed to make an objection at trial or raise the issue on appeal. Id. The Court also held that

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Petitioner’s claims for ineffective assistance of counsel failed to demonstrate his attorney

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had not acted in a reasonably competent or diligent manner. Id. In addition, the Court held

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that Petitioner’s claims against the expert witness failed because “the DNA evidence was

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not essential to the case and calling it into question does not undermine the prosecution’s

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entire case. Even without the expert’s DNA testimony the evidence against petitioner was

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more than sufficient to convict petitioner.” Id.
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Petitioner filed an appeal of the Court of Appeal’s decision on December 20, 1999

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with the California Supreme Court. (See Lodg. 26-3). The Supreme Court denied relief

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without comment on March 29, 2000. (See Lodg. 26-4 at 1).

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Fifteen years later, on February 15, 2015, Petitioner filed another petition for writ of

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habeas corpus on false evidence grounds with the Superior Court of California, San Diego

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County. (See Lodg. 26-7 at 1-6). Petitioner alleged he was denied a fair trial because false

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evidence was presented against him, leading to his conviction. Id. Petitioner argues that

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this false evidence was substantial and probative as to the issue of guilt. Id. Petitioner

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explained his fifteen year delay by alleging that he “wasn’t aware the Expert for the

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Prosecution was a criminal nor was Petitioner aware she was convicted of criminal

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activities.” Id. at 6.

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The Superior Court denied Petitioner’s request on March 31, 2015. (See Lodg. 28-8

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at 2-4). The Superior Court reasoned that Petitioner failed to set forth a prima facie

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statement of facts entitling him to habeas relief. Id. The Court held that absent support,

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mere conclusory allegations do not warrant relief. Id. In addition, the Court held that

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Petitioner’s claim was successive, noting: “[Petitioner] filed a writ of habeas corpus with

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the Court of Appeal in 1999, wherein he raised the same claim argued in this

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petition…Petitioner did not present any grounds for this court to reconsider a claim

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previous heard and denied. As such the petition is procedurally deficient as successive and

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duplicative.” Id. at 4.

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Petitioner appeals this denial to the California Court of Appeal on May 28, 2015.

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(See Lodg. 12-4 at 2-3). The Court of Appeal denied Petitioner’s request as untimely,

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noting the claim was filed nearly 19 years after sentencing (See Lodg. 12-5 at 1-2). The

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Court of Appeal also noted that Petitioner included a newspaper article referencing charges

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against the expert dated more than 17 years ago. Id. Further, the Court of Appeal held

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Petitioner must demonstrate that “[the expert’s] testimony was objectively untrue and was

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of such significance that had it not been introduced, there is a reasonable probability of a

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different result. [Petitioner] made no such showing.” Id. at 1.
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Petitioner appealed the Court of Appeals decision to the California Supreme Court.

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(See Lodg. 12-7 at 1, 3). Petitioner argued that his right to a fair trial had been violated by

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the expert’s presentation of allegedly false evidence. Id. The petition was denied on

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October 14, 2015. (See Lodg. 12-6 at 1). The Supreme Court did not provide a discussion,

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but listed two cases as the basis for its denial: In re Robbins, 18 Cal.4th 770, 780 (1998)

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and In re Miller, 17 Cal.2d 734, 735 (1941). Id.

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On December 14, 2015, Petitioner filed the instant Petition. (See Doc. No. 1). This

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is Petitioner’s first federal habeas petition. Petitioner challenges his conviction alleging the

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same false evidence grounds for relief as his 1999 and 2015 state court petitions. Id. On

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February 3, 2016, the Court provided Petitioner with a Notice Regarding Possible Failure

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to Exhaust and One Year Statute of Limitations. (See Doc. No. 6). On June 9, 2016,

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Respondent field a motion to dismiss on the grounds that all claims are barred by AEDPA’s

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one-year statute of limitations. (See Doc. No. 11).

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On November 21, 2016, Judge Burkhardt filed a Report and Recommendation

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recommending the Court grant Respondent’s motion to dismiss. (See Doc. No. 30).

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Petitioner filed objections to the Report on February 10, 2017. (See Doc. No. 33).

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DISCUSSION

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I. Scope of Review

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The district court’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in Title 28, United States Code, Section 636(b)(1). Under this

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statute, the district court “shall make a de novo determination of those portions of the report

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. . . to which objection is made,” and “may accept, reject, modify, in whole or in part, the

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findings or recommendations made by the magistrate [judge].” Id. It is well-settled, under

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Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those

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parts of a magistrate judge’s report to which no specific objection is made, provided they

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are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

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//

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//
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II. Analysis

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Petitioner alleges violations of his 6th and 14th Amendment rights, claiming that Ms.

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Lawson presented false DNA evidence that the jury found to be credible and that the jury

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relied upon in finding Petitioner guilty. (See Doc 1 at 6).

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A. AEDPA
“The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

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establishes a 1-year statute of limitations for filing a federal habeas corpus petition.”

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Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S. Ct. 1807, 1809, 161 L. Ed. 2d 669 (2005);

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28 USC 2244(d)(1). Enacted on April 24, 1996, AEDPA applies to convictions finalized

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thereafter. For convictions that became final before the enactment of AEDPA, the

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limitation period is deemed to start running on the statute’s date of enactment. Calederon

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v. U.S. Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283 (9th Cir. 1997).

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When an appeal is filed in a state’s highest court and the petitioner does not seek

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relief from the United States Supreme Court, the conviction becomes final on the date that

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time for seeking certiorari expires. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 2002).

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The time for seeking a writ of certiorari from the United States Supreme Court is ninety

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days after the state’s highest court denies the petition for review. Id.; see also Griffith v.

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Kentucky, 479 U.S. 314, 321 n.6 (1987). Therefore, AEDPA’s one year statute of

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limitations begins to run on the date that ninety day period expires. Id.

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Here, Petitioner appealed his conviction to the California Supreme Court and

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received a final decision on June 24, 1998. (See Lodg. 12-2). Petitioner did not file a writ

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of certiorari with the United States Supreme Court. Id. Therefore, Petitioner’s statute of

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limitations period began to run on September 26, 1998, ninety days after Petitioner

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completed his direct review in the California Supreme Court on June 24, 1998. Id.

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Petitioner filed the instant motion on December 14, 2015, nearly 17 years later. (See

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Doc. No. 1). Therefore, Petitioner’s claim is untimely unless he can show is he entitled to

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statutory tolling, delayed start date, or equitable tolling.

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In his objections, Petitioner argues that California Penal Code 1473 entitles him to

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relief, in that the Code provides a writ of habeas corpus may be “prosecuted for…false

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evidence that is substantially material or probative on the issue of guilt or punishment.”

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Cal. Penal Code § 1473 (West). Petitioner argues that the prosecution relied heavily on the

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expert’s testimony to obtain a guilty verdict. (See Doc. 17 at 5). Petitioner also argues that

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Respondent’s argument of untimeliness is contrary to §1473, which entitles Petitioner to

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seek habeas relief in light of the new evidence submitted to the court.

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However, Petitioner’s objections are generalized and merely summarize the merits

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of his claim. In his objection, Petitioner outlines a statement of facts and a statement of the

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case that contain almost identical arguments as his initial pleading.

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This Courts finds that as a result of the lack of specific objections, the Court adopts

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the Report as a whole. Numerous courts have held that a general objection to the entirety

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of a Magistrate Judge's report has the same effect as a failure to object. See Alcantara v.

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McEwen, No. 12-CV-401-IEG DHB, 2013 WL 4517861, at *1 (S.D. Cal. Aug. 15, 2013);

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see also Martin v. Ryan, No. CV-13-00381-PHX-ROS, 2014 WL 5432133, at *2 (D. Ariz.

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Oct. 24, 2014); Napier v. Ryan, No. CV-09-02386-PHX-ROS, 2011 WL 744899, at *1 (D.

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Ariz. Feb. 25, 2011) (noting that “general, non-specific objections” do not require the

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District Court “conduct de novo review of the entire report”); Garcia v. Nuno, No. 14-CV-

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00243-BAS(BGS), 2016 WL 1211954, at *4 (S.D. Cal. Mar. 29, 2016) (“Numerous courts

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have held that a general objection to the entirety of a Magistrate Judge's [report and

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recommendation] has the same effect as a failure to object.”)

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Nevertheless, in the interests of justice, this Court turns to why neither statutory

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tolling, delayed start date, nor equitable tolling are appropriate avenues for Petitioner’s

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claim to circumvent AEDPA’s statute of limitations.

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i.

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As laid out by the Report, once a petitioner is notified that his petition is subject to

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dismissal on AEDPA’s one-year limitation period, the petitioner bears the burden of

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demonstrating that limitation period is sufficiently tolled under statutory and/or equitable

Statutory Tolling

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principles. Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) overruled on other

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grounds by Pace v. Digielmo, 544 U.S. 408, 418 (2005); Johnson v. Lewis, 310 F.Supp.

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2d 1121, 1125 (C.D. Cal. 2004) (holding the petitioner has the burden of demonstrating

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tolling facts). Plaintiff was notified of the one-year statute of limitation period on February

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3, 2016. (See Doc. No. 6). Since that time, Plaintiff has failed to make a showing

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demonstrating the statute of limitations should be tolled.

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AEDPA’s Section 2244(d)(2) provides for statutory tolling for the time during which

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a “properly filed application for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending.” 28 USC § 2244(d)(2). “The time

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when a qualifying application is pending shall not be counted towards any period of

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limitation under this subsection.” Id. Tolling applies under Section 2244(d)(2) to one full

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round of collateral review. Carey v. Saffold, 536 U.S. 214, 223 (2002).

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Here, Petitioner filed his claims in 1999. Petitioner’s claims were properly filed. The

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time during which those claims were pending does not count towards the one year statute

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of limitations period. Petitioner began his state collateral review by filing his 1999 petition

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with the California Superior Court, County of San Diego, on June 15, 1999. (Lodg. 26-1 at

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17). Petitioner completed his state collateral review when the California Supreme Court

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denied him relief on March 29, 2000. (See Lodg. 26-4). Petitioner’s limitation period under

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AEDPA was tolled during this first round of state proceedings. Therefore, Petitioner had

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until March 30, 2001 to file a federal petition.

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However, Petitioner did not file his federal petition until 2015. Petitioner cannot rely

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on his second round of state collateral review to revive his one year statute of limitation

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period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding AEDPA

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does not permit the “reinitiation of the limitations period that has ended before the state

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petition was filed,” even if the state petition was timely filed); see also Moore v. Crosby,

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321 F.3d 1377, 1381 (11th Cir. 2003) (maintaining a state application for post-conviction

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relief does not revive the one-year state of limitations period if such period has expired).

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As such, Petitioner’s second round of state collateral review does not revive or restart

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AEDPA’s one year statute of limitations. Therefore, Petitioner’s claims are not exempt

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from AEDPA’s statute of limitations based on statutory tolling.

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ii.

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AEDPA’s Section 2244 permits a later start date if the factual predicate of the claim

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or claims presented could not have been discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1)(D). The due diligence time frame begins when one knows or

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“through diligence could discover the vital facts, regardless of when their legal significance

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is actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012); see also

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Reed v. McGrath, 343 F. 3d 1077, 1082 (9th Cir. 2003). Determining whether one was

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“diligent” is an objective standard that considers the petitioner’s circumstances. Ford, 683

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F. 3d at 1235.

Delayed Start Date

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In the instant case, Petitioner has not directly addressed the untimeliness of his filing.

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Petitioner fails to make specific mention of this in his objection to the Report. In his initial

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filing, Petition alleges that he only recently learned of the expert’s conviction. However,

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Petitioner’s own filings demonstrate that the Petitioner knew of the expert’s conviction in

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1999. As the Magistrate Judge notes, Petitioner, throughout 1999, filed claims in state court

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alleging he had evidence the expert was not a credible witness because she was found guilty

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of various crimes. (Lodg. 26-1 at 12; 26-2 at 2; 26-3 at 4-5). Therefore, this Court adopts

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the Magistrate Judge’s reasoning that Petitioner knew of the expert’s conviction for sixteen

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years prior to filing the petition. As such, Petitioner’s claim that he only recently discovered

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this evidence is without merit. Petitioner does not qualify for a delayed start date.

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iii.

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Once a petitioner is notified that his petition is subject to dismissal based on

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AEDPA’s one-year limitation period, he bears the burden of demonstrating that limitation

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period is sufficiently tolled under statutory and/or equitable principles. Smith v. Duncan,

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297 F.3d 809, 812-13 (9th Cir. 2002) overruled on other grounds by Pace v. Diglielmo,

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544 U.S. 408, 418 (2005); Johnson v. Lewis, 310 F. Supp. 2d 1121, 1125 (C.D. Cal. 2004)

Equitable Tolling

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(holding the petitioner has the burden of demonstrating tolling facts). Petitioner does not

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meet this threshold.

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Petitions proceeding under Section 2244(d) may be subject to equitable tolling in

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appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). Generally, a litigant

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seeking equitable tolling bears the burden of establishing two elements: (1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

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way. Pace, 544 U.S. at 418. As the Magistrate Judge notes, the Ninth Circuit has found

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equitable tolling appropriate only in rare circumstances that truly rise to the level of

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extraordinary.

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Here, Petitioner’s contention that he recently learned of the expert’s conviction is

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not credible based on the record for this case. There is no “extraordinary circumstance”

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before the Court to warrant the applicability of equitable tolling to the Petition. Therefore,

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equitable tolling does not apply, and Respondent’s Motion to Dismiss is GRANTED.

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III. Certificate of Appealability

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Pursuant to Rule 11 of the Rules following 28 U.S.C. section 2254, which was

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amended effective December 1, 2009, a district court “must issue or deny a certificate of

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appealability when it enters a final order adverse to the applicant.” A state prisoner may

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not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of

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appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also United

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States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts

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retain authority to issue certificates of appealability under AEDPA).

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A certificate of appealability is authorized “if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

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threshold showing, a petitioner must show that: (1) the issues are debatable among jurists

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of reason, (2) that a court could resolve the issues in a different manner, or (3) that the

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questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart,

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220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000);

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Barefoot v. Estelle, 463 U.S. 880 (1983)).
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This Court must decide whether to grant Petitioner a certificate of appealability

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because denial of the petition constitutes a “final order adverse to the applicant.” Based

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on this Court’s review of the Magistrate Judge’s Report, Petitioner’s general objections

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thereto, and the entire record in this matter, this Court finds that no issues presented herein

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are debatable among jurists of reason nor could they be resolved in a different manner.

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This Court further finds that there are no questions raised that deserve encouragement to

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proceed further. Accordingly, this Court DENIES Petitioner a certificate of appealability.

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED:

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1. Petitioner’s objections [Doc. No. 33] to the magistrate judge’s report and

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recommendation are OVERRULED;
2. The findings and conclusions of the magistrate judge presented in the report and
recommendation are [Doc. No. 30] ADOPTED in their entirety;

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3. Respondent’s Motion to Dismiss [Doc. No. 11] is GRANTED;

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4. Petitioner’s certificate of appealability is DENIED.

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DATED: March 30, 2017
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JOHN A. HOUSTON
United States District Judge

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