Pittman v. Sprearman

Filing 14

ORDER adopting re 12 Report and Recommendation. The Court hereby: (1) ADOPTS the R&R in its entirety; (2) OVERRULES Petitioner's objections; (3) GRANTS 10 Respondent's motion to dismiss; (4) DISMISSES the case WITH PREJUDICE; and (5) DECLINES to issue a certificate of appealability. Signed by Judge Anthony J. Battaglia on 2/8/2017. (All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. PITTMAN, Case No.: 16cv1585-AJB (BLM) Petitioner, 12 13 14 ORDER: v. M.E. SPREARMAN, Warden, 15 (1) ADOPTING REPORT AND RECOMMENDATION; (Doc. No. 12) Respondent. 16 (2) OVERRULING PETITIONER’S OBJECTIONS; (Doc. No. 13) 17 18 19 (3) DISMISSING CASE WITH PREJUDICE; AND 20 21 (4) DENYING CERTIFICATE OF APPEALABILITY 22 23 24 25 26 27 On August 19, 2016, Petitioner Antoine L. Pittman (“Petitioner”), a state prisoner proceeding pro se, filed his first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 5.) Petitioner alleges that the trial judge provided flawed jury instructions, and that his trial counsel provided ineffective assistance of counsel. (Id. at 6- 28 1 16cv1585-AJB (BLM) 1 33.) On August 24, 2016, the Court reopened Petitioner’s case. (Doc. No. 6.) Subsequently, 2 M.E. Sprearman (“Respondent”) filed a motion to dismiss on October 12, 2016. (Doc. No. 3 10.) 4 On December 16, 2016, Magistrate Judge Barbara L. Major filed a Report and 5 Recommendation (“R&R”) recommending that the Court grant Respondent’s motion to 6 dismiss. (Doc. No. 12.) Petitioner filed timely objections to the R&R on January 9, 2017. 7 (Doc. No. 13.) Respondent did not file a Reply by the deadline as set forth by the R&R. 8 (Doc. No. 12 at 14.) For the reasons set forth more fully below, the Court ADOPTS the 9 R&R in full, (Doc. No. 12), OVERRULES Petitioner’s objections, (Doc. No. 13), 10 GRANTS Respondent’s motion to dismiss Petitioner’s first amended petition for writ of 11 habeas corpus WITH PREJUDICE, (Doc. No. 10), and DECLINES to issue a certificate 12 of appealability. 13 I. BACKGROUND1 14 In December of 1994, Petitioner fatally shot Lon Smithwick (“Smithwick”), who 15 had earlier refused to buy alcohol for Petitioner’s girlfriend. (Doc. No. 11-1 at 3.) The next 16 month, Petitioner, who was eighteen years old at the time, conspired with three fourteen 17 year olds to rob Tariq Khamisa (“Khamisa”), a pizza delivery man. (Id. at 4.) When 18 Khamisa refused to give up his pizzas, Petitioner told the armed fourteen year old to shoot 19 Khamisa, which the boy did. (Id. at 5.) 20 A jury convicted Petitioner of second degree murder of Smithwick, first degree 21 murder of Khamisa, attempted robbery of Khamisa, and conspiracy to commit robbery. 22 (Id. at 1.) Petitioner was then sentenced to life imprisonment without the possibility of 23 parole for the murder of Khamisa, and was sentenced to fifteen years to life for the murder 24 of Smithwick. (Id.) 25 In 1995, Petitioner appealed his conviction on several grounds including that: (1) his 26                                                                   27 1 28 The Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut this presumption, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). 2 16cv1585-AJB (BLM) 1 conviction for the murder of Smithwick be reversed because the trial court failed to instruct 2 sua sponte on the defense of others or the honest but unreasonable belief in the need to 3 defend others; (2) the trial court refused to instruct on voluntary manslaughter; (3) the trial 4 court failed to instruct sua sponte that efforts by others to intimidate a witness could not be 5 used against a defendant unless the jury found he had authorized such efforts; and (4) 6 Petitioner’s conviction for the murder of Khamisa be reversed because the charge was 7 submitted to the jury on a legally incorrect conspiracy theory. (Id. at 2.) On May 21, 1997, 8 the California Court of Appeal rejected each of Petitioner’s claims and affirmed the 9 judgment. (Id.) 10 On June 24, 1997, Petitioner petitioned to have his conspiracy theory claim reviewed 11 by the California Supreme Court. (Doc. No. 11-2.) On August 25, 1997, the California 12 Supreme Court denied the petition to review. (Doc. No. 11-3.) 13 On September 18, 1997, Petitioner filed a petition for writ of habeas corpus in the 14 California Supreme Court asserting that the trial court erred in failing to instruct the jury 15 that to be liable for first degree murder under an aiding and abetting theory, it had to find 16 that Petitioner had the knowledge and intent or purpose of committing, encouraging, or 17 facilitating the confederate’s crime. (Doc. No. 11-4 at 4.) On December 23, 1997, the 18 California Supreme Court denied the petition. (Doc. No. 11-5.) 19 On June 24, 1998, Petitioner filed a federal habeas petition under 28 U.S.C. § 2254 20 raising the following claims: (1) the trial court gave an erroneous instruction on aiding and 21 abetting; (2) trial counsel provided ineffective assistance of counsel; (3) that Petitioner’s 22 first degree murder conviction was submitted to the jury on a legally incorrect conspiracy 23 theory; and (4) the trial court erred in failing to sua sponte instruct the jury on either the 24 defense of others or the honest but unreasonable defense of others. (Doc. No. 11-6.) On 25 September 10, 1998, respondent Susan Yearwood filed an answer to the petition. (Doc. No. 26 11-7.) 27 On March 15, 1999, the district court filed an amended order agreeing with 28 respondent Yearwood’s answer and found that Petitioner had failed to exhaust his state 3 16cv1585-AJB (BLM) 1 court remedies on grounds two and four listed above. (Doc. No. 11-8 at 1.) The Court thus 2 provided three options for Petitioner: (1) dismiss the case in order to exhaust state court 3 remedies; (2) file a “Supplemental Memorandum Regarding Exhaustion”; or (3) formally 4 and permanently abandon the unexhausted claims. (Id. at 5-6.) In response, Petitioner sent 5 a letter on March 25, 1999, stating that he chose to dismiss the case in order to exhaust 6 state court remedies. (Doc. No. 11-9 at 3.) On April 12, 1999, Magistrate Judge Louisa S. 7 Porter issued an R&R. (Doc. No. 11-10.) The R&R recommended that Petitioner’s motion 8 to dismiss be granted, and that the petition for writ of habeas corpus be dismissed without 9 prejudice. (Id. at 2.) 10 On June 20, 2016, Petitioner filed another petition for writ of habeas corpus with 11 this Court. (Doc. No. 1.) Shortly thereafter, the Court issued a notice regarding possible 12 failure to exhaust and one-year statute of limitations. (Doc. No. 2.) On June 23, 2016, the 13 Court dismissed Petitioner’s case without prejudice for failure to pay the $5.00 filing fee 14 or in the alternative failing to move to proceed in forma pauperis. (Doc. No. 3.) On August 15 3, 2016, Petitioner paid the $5.00 filing fee. (Doc. No. 4.) 16 Thereafter, Petitioner filed his first amended petition for writ of habeas corpus 17 (“FAP”) on August 19, 2016. (Doc. No. 5.) The FAP raises the same four claims that 18 Petitioner raised in his 1998 federal habeas petition, discussed supra p. 3, with the same 19 supporting arguments, verbatim. (See generally Doc. No. 5; Doc. No. 11-6.) On October 20 12, 2016, Respondent filed a motion to dismiss the FAP. (Doc. No. 10.) Respondent asserts 21 that the FAP is time-barred by the one-year limitations period, and that the FAP contains 22 unexhausted claims. (Id. at 8-12.) On December 16, 2016, Magistrate Judge Major filed an 23 R&R recommending that Respondent’s motion to dismiss be granted and Petitioner’s FAP 24 be dismissed with prejudice. (Doc. No. 12.) On January 9, 2017, Petitioner filed a timely 25 objection. (Doc. No. 13.) For the following reasons, the Court agrees with the R&R. 26 II. LEGAL STANDARDS 27 A. 28 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district Review of the Report and Recommendation 4 16cv1585-AJB (BLM) 1 judge’s duties in connection with a magistrate judge’s report and recommendation. The 2 district judge must “make a de novo determination of those portions of the report . . . to 3 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 4 finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see 5 also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence 6 of timely objection(s), the court “need only satisfy itself that there is no clear error on the 7 face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory 8 Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 9 Cir. 2003). 10 B. 11 A petitioner in state custody pursuant to the judgment of a state court may challenge 12 his detention only on the grounds that his custody is in violation of the United States 13 Constitution or the laws of the United States. 28 U.S.C. § 2254(a); accord Williams v. 14 Taylor, 529 U.S. 362, 375 n.7 (2000). The Anti-Terrorism and Effective Death Penalty Act 15 (“AEDPA”) applies to § 2254 habeas corpus petitions filed after 1996, and employs a 16 “‘highly deferential standard for evaluating state-court rulings,’ which demands that state- 17 court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 18 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 & n.7 (1997)). Federal 19 habeas relief is available only if the result reached by the state court on the merits is 20 “contrary to” or “an unreasonable application” of Supreme Court precedent, or if the 21 adjudication is “an unreasonable determination” based on the facts and evidence. 28 U.S.C. 22 § 2254(d)(1)-(d)(2). 23 III. Standard of Review Under 28 U.S.C. § 2254 DISCUSSION 24 Here, Petitioner’s “objections” consist of seven pages of text stating that “the courts 25 know ‘very well’ young boys coming to these prisons with life sentences know nothing of 26 the law, and have little education,” as well as requesting the Court do the “Christian thing.” 27 (Doc. No. 13 at 5-6.) Petitioner then objects arguing that “[r]espondents would like to bury 28 any mistakes with a [sic] unexhausted claim, and a [sic] untimely claim, ‘but’ if the trial 5 16cv1585-AJB (BLM) 1 courts would have done this correctly the first time around, there would be no untimely or 2 unexhausted claims.” (Id. at 6.) Additionally, Petitioner claims that “the trial court should 3 not be able to make these enormous and exceedingly wicked mistakes . . . then close the 4 door on many petitioners with untimely claims . . . .” (Id.) The Court first clarifies that 5 these are not objections, but are unsubstantiated allegations to which the Court is not 6 required to respond to. See Carter v. Yellowstone Cnty., No. CV-07-09 BLGRFC, 2007 7 WL 1562569, at *2 (D. Mon. May 25, 2007). 8 Next, the Court highlights that Petitioner’s objection fails to challenge the findings 9 and recommendations made in Magistrate Judge Major’s R&R. Instead, Petitioner repeats 10 the arguments made in his FAP, argues that his conviction should be reversed, as well as 11 requests the Court to “see the mistakes of the trial court” and execute a “proper punishment 12 for the petitioner, strictly from the trial courts mistakes, and do away with the life without 13 parole sentence . . . .” (See Generally, Doc. No. 13.) The Court finds these general 14 objections to the entirety of Magistrate Judge Major’s R&R has the “same effect as a failure 15 to object.” See Alcantara v. McEwen, No. 12-CV-401-IEG (DHB), 2013 WL 4517861, at 16 *1 (S.D. Cal. Aug. 15, 2013); see also Johnson v. Gains, No. 09cv1312-LAB (POR), 2011 17 WL 765851, at *1 (S.D. Cal. Feb. 24, 2011) (following the sixth circuit and finding that 18 objections to the report in its entirety do not satisfy the requirement that parties may file 19 “specific written objections” under FRCP 72(b)(2)); Morris v. Barra, Civil No. 10cv02642 20 AJB (BGS), 2013 WL 1190766, at *17, n.11 (S.D. Cal. Mar. 22, 2013). Accordingly, 21 without any further reference to any supplementary legal conclusions or facts, Petitioner is 22 unable to support these broad conclusions and has thus failed to object.2 23 In sum, as currently pled, Petitioner’s objection fails to provide the Court with any 24 colorable claim why Magistrate Judge Major’s R&R should not be adopted. First, 25                                                                   26 2 27 28 See Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003) (“[P]etitioner’s failure to object to the magistrate judge’s recommendation with the specificity required by the Rule is, standing alone, a sufficient basis upon which to affirm the judgment of the district court as to this claim.”); see also Howard v. Sec’y of Health and Human Serv., 932 F.2d 505, 509 (6th Cir. 1991) (“A general objection to the entirety of the magistrate’s report has the same effect as would a failure to object.”). 6 16cv1585-AJB (BLM) 1 Petitioner does not provide evidence to suggest that he was unable to file his FAP within 2 the one-year statute of limitations due to an “extraordinary circumstance beyond his 3 control” or that he has been pursuing his rights diligently; thus he is entitled to equitable 4 tolling and his FAP is timely. See Holland v. Florida, 560 U.S. 631, 649 (2010). Second, 5 Petitioner has not presented evidence to allege that he has exhausted his state court 6 remedies as to the second and fourth claims present in his FAP. See 28 U.S.C. § 7 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 520 (1982) (holding that a federal 8 court may not consider a petition for habeas corpus unless the petitioner has first presented 9 his claims to the state courts, thereby “exhausting” them). Accordingly, Petitioner has 10 unsuccessfully objected to any of the conclusions made in the R&R. 11 Thus, finding Magistrate Judge Major’s R&R to have carefully reviewed the pending 12 motions, the applicable law, and the relevant facts presented by Petitioner, the Court agrees 13 with the R&R and finds that as Petitioner’s FAP was filed more than fifteen years past the 14 statute of limitations, it is untimely. Additionally, despite electing to dismiss his first 15 federal petition in 1999 so that Petitioner could exhaust his state court remedies, Petitioner 16 has failed to provide evidence that he has done so, and thus has forfeited these claims. As 17 a result, the Court DISMISSES Petitioner’s FAP WITH PREJUDICE.3 18 IV. CERTIFICATE OF APPEALABILITY 19 When a district court enters a final order adverse to the applicant in a habeas corpus 20 proceeding, it must either issue or deny a certificate of appealability, which is required to 21 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 22 of appealability is appropriate only where the petitioner makes a “substantial showing of 23 the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) 24 (quoting 28 U.S.C. § 2253(c)(2)). A petitioner satisfies this standard by demonstrating that 25                                                                   26 See Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (holding that if no objection is made by either party, the Court may assume the correctness of the magistrate judge’s proposed findings of fact and decide the motion on the applicable law). 3 27 28 7 16cv1585-AJB (BLM) 1 reasonable jurists could debate whether “the petition should have been resolved in a 2 different manner or that the issues presented were ‘adequate to deserve encouragement to 3 proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (citation omitted). 4 Here, Petitioner did not attempt to make a substantial showing of the denial of a 5 constitutional right, instead arguing that the Court should resentence Petitioner, and 6 generally repeating the claims made in his FAP. Thus, finding that reasonable jurists could 7 not debate the Court’s conclusion to dismiss with prejudice Petitioner’s claims, the Court 8 DECLINES to issue a certificate of appealability. 9 V. CONCLUSION 10 For the foregoing reasons, having reviewed the R&R, the Court finds it is thorough, 11 well grounded in the law, and contains no clear error. Accordingly, the Court hereby: (1) 12 ADOPTS the R&R in its entirety; (2) OVERRULES Petitioner’s objections; (3) 13 GRANTS Respondent’s motion to dismiss; (4) DISMISSES the case WITH 14 PREJUDICE; and (5) DECLINES to issue a certificate of appealability. 15 16 IT IS SO ORDERED. 17 Dated: February 8, 2017 18 19 20 21 22 23 24 25 26 27 28 8 16cv1585-AJB (BLM)

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