Leonard Saldana v. Neil McDowell

Filing 32

ORDER (1) Overruling Petitioner's Objections to Report And Recommendation; (2) 20 Adopting Report and Recommendation In Its Entirety ; And (3) Dismissing Petitioner's Petition Due To Untimeliness 13 . It is ordered that after review ing Petitioner's Opposition to the underlying Motion to Dismiss, (ECF No. 19), Judge Major's thorough Report and Recommendation, (ECF No. 20), and Petitioner's Objections to Judge Major's Report and Recommendation, (ECF No. 29) , the Court agrees with Judge Major's conclusion that the Petition is time barred. Accordingly, the Court overrules petitioner's objections, adopts Judge Major's Report and Recommendation in its entirety, and grants with prejudice respondent's Motion to Dismiss. This concludes the litigation in this matter. Signed by Judge Janis L. Sammartino on 3/7/2017. (All non-registered users served via U.S. Mail Service)(dxj) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD SALDANA, Case No.: 16-cv-0161-JLS (BLM) Petitioner, 12 13 14 ORDER (1) OVERRULING PETITIONER’S OBJECTIONS TO REPORT AND RECOMMENDATION; (2) ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY; AND (3) DISMISSING PETITIONER’S PETITION DUE TO UNTIMELINESS v. NEIL MCDOWELL, Warden, 15 Respondent. 16 17 18 (ECF Nos. 13, 20) 19 20 21 Presently before the Court is Petitioner Leonard Saldana’s Objection to Report and 22 Recommendation (“Pet’r’s Objs.”). (ECF No. 29.) Petitioner’s Objection responds to a 23 thorough Report and Recommendation (“R&R”), (ECF No. 20), prepared by Magistrate 24 Judge Barbara Lynn Major, in which Judge Major recommends this Court dismiss 25 Petitioner’s Petition for a Writ of Habeas Corpus (“Pet.”), (ECF No. 1). Having considered 26 the arguments and the law, the Court OVERRULES Petitioner’s objections to Judge 27 Major’s Report and Recommendation, ADOPTS the Report and Recommendation in its 28 entirety, and DISMISSES the Petition due to untimeliness. 1 16-cv-0161-JLS (BLM) 1 BACKGROUND 2 The R&R adequately details the factual and procedural background in this case. (See 3 R&R 2–3.) The Court incorporates the R&R’s background discussion by reference, and 4 notes relevant facts where necessary in assessing Plaintiff’s objections. 5 6 LEGAL STANDARD I. Objections to a Report and Recommendation 7 A district judge “may accept, reject, or modify the recommended disposition” of a 8 magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. 9 § 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 10 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). However, 11 “[t]he statute makes it clear that the district judge must review the magistrate judge’s 12 findings and recommendations de novo if objection is made, but not otherwise.” United 13 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in 14 original); see also Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the 15 Constitution nor the statute requires a district judge to review, de novo, findings and 16 recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 17 1121. In the absence of a timely objection, however, “the Court need only satisfy itself that 18 there is no clear error on the face of the record in order to accept the recommendation.” 19 Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 510 20 F.2d 196, 206 (9th Cir. 1974)). 21 II. AEDPA Statute of Limitations 22 The Anti-terrorism and Effective Death Penalty Act (“AEDPA”) establishes a one- 23 year statute of limitations during which a state prisoner may file a federal application for a 24 writ of habeas corpus. 28 U.S.C. §2244(d)(1). Although the statute begins to run once a 25 prisoner’s conviction becomes final, the one-year period does not encompass the time 26 during which an application for state collateral review is “pending” in the state courts. 27 § 2224(d)(2). Additionally, a petitioner may be entitled to equitable tolling, but “only if he 28 shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 2 16-cv-0161-JLS (BLM) 1 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 2 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Finally, timely 3 or not, a petitioner may assert a claim of “actual innocence” and prevail if he both reveals 4 new evidence and establishes “that it is more likely than not that no reasonable juror would 5 have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 133 S. Ct. 6 1924, 1935 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327). 7 ANALYSIS 8 In the present case, Judge Major determined that Petitioner’s filing was time-barred 9 by AEDPA’s statute of limitations, and that Petitioner was not entitled to statutory or 10 equitable tolling, nor did he state a valid claim for actual innocence. (See generally R&R.) 11 Petitioner filed a forty-page Objection document, arguing that “the honorable magistrate 12 has erred on the subject of ‘legal theories[,]’ ” (Pet’r’s Objs. 1), and discussing AEDPA’s 13 actual-innocence exception, (id. at 1–10, 31–33), Petitioner’s claims of attorney 14 abandonment, (id. at 10–21), equitable tolling, (id. at 21–31), and statutory tolling, (id. at 15 31–37). The Court construes these various discussions as objections to Judge Major’s legal 16 conclusions, and addresses each below in the order of (1) statutory tolling, (2) equitable 17 tolling and petitioner’s claims of attorney abandonment as a basis for such tolling, and (3) 18 actual innocence. 19 I. Statutory Tolling 20 As previously noted, AEDPA provides that its statute of limitations is tolled while 21 an application for collateral review of a petitioner’s conviction is “pending” in state court. 22 § 2224(d)(2). This is easily calculated in most states, because habeas review there follows 23 the progression of most civil suits—a petitioner brings suit in a lower court within a 24 mandated period of time, after which there is a determination by that lower court that is 25 then reviewed by a higher court or courts. See Carey v. Saffold, 536 U.S. 214, 221 (2002). 26 However, in California review of a lower-court determination is not technically required, 27 and instead a prisoner may file a new “original” habeas petition in a higher Court, with the 28 timeliness of any such filing to be determined by a “reasonableness” standard. Id. 3 16-cv-0161-JLS (BLM) 1 California’s reasonableness standard merely requires that petitioners file known claims “as 2 promptly as the circumstances allow.” Walker v. Martin, 562 U.S. 307, 310 (2011) (citing 3 In re Clark, 855 P.2d 729, 738, n.5 (Cal. 1993)). 4 In the present case, Petitioner does not dispute that he did not file the instant action 5 until “more than two years after the statute of limitations ran.” (R&R 4.) More specifically, 6 Petitioner did not file his first state-court petition until almost two years after his conviction 7 became final. (See id. at 2–3.) However, Petitioner in his objections asserts various reasons 8 for the delay, including 9 the attorney’s abandonment, . . . the delusion of the unfiled habeas petition, and the wrongly advised and wrongly filed habeas petition, up to the parade of assistants and next friends in barring the habeas petition from going out on time . . . . 10 11 12 13 (Pet’r’s Objs. 37.) But these reasons are more appropriately examined under Petitioner’s 14 equitable tolling argument, otherwise the California “reasonableness” standard would 15 result in a complete end-run around AEDPA’s statutory constraints. This has been 16 recognized both by the Supreme Court, Evans v. Chavis, 546 U.S. 189, 201 (2006) 17 (instructing that—in the absence of any clear directive from California courts—a six month 18 delay in filing does not “fall within the scope of the federal statutory word ‘pending’ ” ), 19 and the Ninth Circuit, Gaston v. Palmer, 447 F.3d 1165, 1166 (9th Cir. 2006) (“The 20 Supreme Court in Chavis held that, absent a clear indication to the contrary by the 21 California legislature or a California court, an unexplained and unjustified gap between 22 filings of six months was ‘unreasonable’ . . . .”). 23 Accordingly, Petitioner is not entitled to the statutory tolling for the over-one-year 24 period he seeks. The Court therefore OVERRULES Petitioner’s objection regarding 25 statutory tolling. 26 II. Equitable Tolling 27 As previously noted, to receive equitable tolling, “[t]he petitioner must establish two 28 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 4 16-cv-0161-JLS (BLM) 1 circumstances stood in his way.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) 2 (Bryant v. Ariz. Attorney Gen., 499 F.3d 1056, 1061 (9th Cir. 2007)). The petitioner must 3 also show that “the extraordinary circumstances were the cause of his untimeliness,” and 4 that the “extraordinary circumstances ma[de] it impossible to file a petition on time . . . .” 5 Id. (alteration original) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), and 6 Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)). However, “equitable tolling is 7 ‘unavailable in most cases[,]’ ” and a petitioner therefore bears a heavy burden to prove 8 entitlement to it “lest the exceptions swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 9 (9th Cir. 2010) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). 10 Petitioner seems to primarily contest Judge Major’s determination that Petitioner did 11 not adequately demonstrate attorney abandonment sufficient to warrant equitable tolling. 12 (See Pet’r’s Objs. 14–21, 30–31.)1 Petitioner catalogs particular actions by his two 13 attorneys, (id. at 14–16), and argues that because of those actions he “has been prejudiced 14 by both trial counsel and court . . . and [therefore] has shown cause in the attorneys’ 15 ineffectiveness and complete abandonment[,]” (id. at 30). Specifically, Petitioner argues 16 that (1) his first attorney explicitly told Petitioner to ask himself “should we go to trial,” 17 mentioned “an appeal is an entirely different arrangement” for billing purposes, and “lost, 18 misplaced, destroyed, or simply ignored” important witness information collected by 19 Petitioner’s wife, (id. at 14–15); (2) his second attorney advised him that “[e]ven if we 20 can’t pull back the plea, there are still more options that we have[,]” (id.); and (3) Petitioner 21 had an open-ended contract with each attorney to “pay for services . . . ‘as were needed,’ ” 22 (id.). 23 /// 24 25 26 27 28 Petitioner’s “Equitable Tolling” Section to his objections primarily details AEDPA’s actual innocence exception, why the trial Judge did not have standing to accept the plea, and strands of both Supreme Court and Ninth Circuit jurisprudence discussing the “adequate and independent state grounds” exception which may at times bar federal review. (Pet’r’s Objs. 21–29). Only the last several paragraphs of the “Equitable Tolling” Section discuss equitable tolling, (id. at 30–31), and are thus what the Court here considers in concert with the relevant portion of Petitioner’s “Attorney Abandonment” section, (id. at 14–21). 1 5 16-cv-0161-JLS (BLM) 1 However, Petitioner’s argument concerning his first attorney’s alleged lackluster 2 performance and “intentions to minimize his workmanship because his goal was a plea 3 deal[,]” (id. at 14), do not speak to the reason Petitioner failed to timely file his post-plea 4 habeas petition. And that Petitioner’s second attorney specifically said Petitioner would 5 have “more options” does not establish the extraordinary circumstance of attorney 6 abandonment; there is no indication that Petitioner asked his second attorney to file a 7 habeas petition on his behalf, nor any indication that Petitioner’s second attorney failed to 8 notify him of the status of his request to change his plea. See, e.g., Holland v. Florida, 560 9 U.S. at 652 (finding attorney abandonment where, among other things, petitioner’s attorney 10 failed to timely file a petition for habeas corpus despite petitioner’s repeated requests, 11 which requests included identifying “the applicable legal rules[,]” and where attorney 12 failed to notify petitioner that state supreme court had decided his case). Furthermore, 13 Petitioner’s objections nowhere refute Judge Major’s apt points that Petitioner “admits he 14 was unable to pay counsel for any work after sentencing” and that “[e]ven if Petitioner 15 could establish that the attorney improperly abandoned him, Petitioner would only be 16 entitled to equitable tolling for the time before he discovered the abandonment[,]” and 17 therefore would still run afoul of AEDPA’s statute of limitations. (R&R 8.)2 18 Accordingly, Petitioner does not adequately demonstrate attorney abandonment 19 such that the AEDPA statute of limitations should be equitably tolled. And even if 20 Petitioner did establish sufficient abandonment, the statute would only be tolled until late 21 2012, (see Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss 4 (unable to communicate with 22 attorney through June of 2012); id. at 13 (accepted assistance from inmate in filing petition 23 starting December 20, 2012)), thus making Petitioner’s first, June 1, 2014 habeas filing 24 /// 25 26 Additionally, although Petitioner did not directly object to Judge Major’s conclusion that Petitioner “is not entitled to equitable tolling on account of his pro se status, lack of legal knowledge, or reliance on prison inmate helpers[,]” (R&R 12), the Court notes that Judge Major’s conclusion was correct and thoroughly supported by the record and controlling law. 2 27 28 6 16-cv-0161-JLS (BLM) 1 untimely regardless. Given the foregoing, the Court OVERRULES Petitioner’s Objection 2 regarding attorney abandonment and equitable tolling. 3 III. Actual Innocence 4 As previously noted, a Petitioner who validly claims actual innocence via new 5 evidence may bypass AEDPA’s statute of limitations entirely. However, “tenable actual- 6 innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement 7 unless he persuades the district court that, in light of the new evidence, no juror, acting 8 reasonably, would have voted to find him guilty beyond a reasonable doubt.’ ” McQuiggin, 9 133 S. Ct. at 1928 (quoting Schlup, 513 U.S. at 329). 10 In the present case, Petitioner claims that he satisfies the actual-innocence exception, 11 (Pet’r’s Objs. 1–10, 31–33), and objects to Judge Major’s determination that “Petitioner 12 has not presented new reliable evidence in support of a claim of actual innocence” 13 sufficient to “have his untimely petition heard on the merits[,]” (R&R 13). Specifically, 14 Petitioner objects generally to the plea-bargaining system and its effect on our justice 15 system, (Pet’r’s Objs. 1–8), argues that he is actually innocent, (id. at 31–33), and that in 16 his underlying case “the Prosecution’s evidence [was] only speculative[,]” (id. at 32). 17 However, Petitioner nowhere identifies any new evidence indicating that he is, in 18 fact, innocent. Instead, Petitioner’s main contention seems to be that his claim of 19 “innocence from [the date of] his initial arrest and incarceration . . . should be liberally 20 construed as fact.” (Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss 2; see Pet’r’s Objs. 31 (“The 21 declaration of innocence in the instant case is not just an allegation[;] it is a declared fact 22 that must not be brushed aside . . . .”).) However, a Petitioner’s belief is insufficient alone 23 to prove actual innocence; instead, objective evidence that was previously not presented is 24 required.3 25 /// 26 27 28 And Petitioner in the instant case tacitly recognizes this by noting that “Petitioner’s case very much parallels McQuiggin” and detailing the fact that the petitioner in McQuiggin “rel[ied] on three affidavits, . . . each pointing to [another person] as the murderer.” (Pet’r’s Objs. 31.) 3 7 16-cv-0161-JLS (BLM) 1 Given the foregoing, the Court cannot say that “in light of all the evidence, including 2 evidence not introduced at trial, ‘it is more likely than not that no reasonable juror would 3 have found petitioner guilty beyond a reasonable doubt.’ ” Majoy v. Roe, 296 F.3d 770, 4 776 (9th Cir. 2002) (quoting Schlup, 513 U.S. at 327). Accordingly, the Court 5 OVERRULES Petitioner’s objection regarding actual innocence. 6 CONCLUSION 7 After reviewing Petitioner’s Opposition to the underlying Motion to Dismiss, (ECF 8 No. 19), Judge Major’s thorough Report and Recommendation, (ECF No. 20), and 9 Petitioner’s Objections to Judge Major’s Report and Recommendation, (ECF No. 29), the 10 Court agrees with Judge Major’s conclusion that the Petition is time barred. Accordingly, 11 the Court OVERRULES Petitioner’s Objections, ADOPTS Judge Major’s Report and 12 Recommendation in its entirety, and GRANTS WITH PREJUDICE Respondent’s 13 Motion to Dismiss. Because this concludes the litigation in this matter, the Clerk SHALL 14 close the file. 15 16 IT IS SO ORDERED. Dated: March 7, 2017 17 18 19 20 21 22 23 24 25 26 27 28 8 16-cv-0161-JLS (BLM)

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