Wright v. Fox

Filing 15

REPORT AND RECOMMENDATION re 14 MOTION to Dismiss Petition for Writ of Habeas Corpus, filed by Robert W. Fox. Objections to R&R due by 7/28/2017. Replies due by 8/4/2017. Signed by Magistrate Judge Jan M. Adler on 7/11/2017.(All non-registered users served via U.S. Mail Service)(lrf)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LANE WRIGHT, Petitioner, 12 13 v. 14 ROBERT W. FOX, Warden, Case No.: 16CV2627-LAB(JMA) REPORT & RECOMMENDATION RE: MOTION TO DISMISS [DOC. NO. 14] Respondent. 15 16 For the reasons set forth below, the Court recommends that the Motion to 17 18 Dismiss [Doc. No. 14] filed by Respondent Robert W. Fox, Warden, be 19 GRANTED and the Petition for Writ of Habeas Corpus [Doc. No. 1 (“Petition”)] 20 filed by Petitioner Christopher Lane Wright (“Wright”) be DISMISSED with 21 prejudice. 22 I. 23 Wright has a lengthy criminal history that involves many plea-bargained 24 INTRODUCTION AND PROCEDURAL BACKGROUND convictions dating back to 1981. See Mot. to Dismiss, Ex. A at 42-46.1 25 26 Wright and Respondent have both provided the Court with copies of records of Wright’s criminal history and related state court proceedings. See Doc. No. 1, Petition, pp. 7-42 of 43 and Doc. No. 14, Mot. to Dismiss, Exs. A – S3. Respondent’s counsel explains some gaps exist in Wright’s criminal court records, because a guilty plea often reduces punishment while 1 27 28 1 16CV2627-LAB(JMA) 1 A. Wright’s 1990 Conviction 2 In July 1990, Wright was charged with several crimes in connection with 3 two domestic violence incidents. Mot. to Dismiss, Ex. A at 43 (regarding No. 4 CR113332). He pleaded guilty to aggravated assault, Cal. Penal Code § 245(a), 5 and was granted probation. Id. 6 B. Wright’s 1995 Conviction 7 Thereafter, Wright violated the terms of his probation. Id. at 44. He was 8 arrested and booked in San Diego County Central Jail in August 1995, at which 9 point it was discovered he had smuggled cocaine base into the jail and hidden it 10 in his cell. Id. He entered a guilty plea for the crime of possession of a controlled 11 substance under Cal. Health & Safety Code § 11377(a) and admitted his 1990 12 conviction was a “strike.” Id. (regarding No. SDC114914).) He received a prison 13 sentence for the drug possession that was enhanced by the 1990 strike. Id. 14 In May 2003, after his release and after other crimes, Wright was charged with 15 arson after setting two small fires during a domestic dispute. Id. at 45 (regarding 16 No. SDC175183). He pleaded guilty to arson, Cal. Penal Code § 452(b), 17 admitted he had once been to prison, Cal. Penal Code § 667.5(b), admitted the 18 1990 strike, and was granted probation. Id. 19 C. Wright’s 2004 Conviction 20 Just a little more than a year later, in June 2004, while he was still on 21 probation, Wright was arrested for shoplifting. Id. (regarding No. SCS185202).) 22 He pleaded guilty to burglary, Cal. Penal Code § 459, and again admitted the 23 1990 prior strike. His probation was revoked, and he received a four-year prison 24 term for the 2003 conviction, as well as a thirty-two-month prison term for the 25 26 27 28 preventing the creation of formal appellate records. Mot. to Dismiss, p. 1. The Court has reviewed the entirety of the filings made by Wright and Respondent and finds the Court’s record is sufficient to rule on the issues raised in the Motion to Dismiss. 2 16CV2627-LAB(JMA) 1 2004 convictions. Id. Thus, by 2007, Wright’s criminal record included a 1990 2 strike conviction and he had served two separate terms in prison. 3 D. Wright’s 2007 Conviction 4 Wright was arrested again in February 2007, after he and another 5 individual sold cocaine base to an undercover peace officer. Id. at 46 (regarding 6 SDC204979). The charges filed against him included allegations that Wright had 7 the 1990 strike conviction and had twice gone to prison. Id. at 73-77 (regarding 8 SDC204979). Wright pleaded guilty to drug transportation, Cal. Health & Safety 9 Code § 11352(a), and selling cocaine, Cal. Health & Saf. Code § 11351.5; 10 admitted he served two prior prison sentences; and further admitted his 1990 11 conviction was a strike. Id. at 105, ¶1, 105-07. He received a five-year sentence, 12 but the court suspended execution and granted Wright probation. Id. at 104. His 13 probation included conditions that he spend a year in county jail and he complete 14 a rehabilitation program. Id. at 99-104. 15 E. Wright’s 2009 & 2011 Probation Hearings 16 In March 2009, Wright’s probation was revoked and then reinstated as 17 modified. Id. at 46 (regarding SDC204979). During a probation and sentencing 18 hearing held on June 10, 2011, Wright admitted that he had violated his 19 probation and been in possession of a weapon. Mot. to Dismiss, Ex. S-1, at 1-2. 20 Wright’s probation was reinstated as modified. Id., Ex. A at 46. 21 F. Wright’s 2011 Conviction & Current Prison Sentence 22 Five days later, on June 15, 2011, Wright was the subject of a car chase, 23 when he fled from San Diego police officers who attempted to pull him over after 24 witnessing him drive a speeding car with inoperative brake lights and make a 25 reckless maneuver with the vehicle. Id. at 40-41. After leading police at high 26 speeds on a series of South County freeways and city streets, Wright drove his 27 vehicle into a cul-de-sac, where he was hemmed in by the pursuing police cars. 28 Id. Wright then turned his car, drove towards a police officer standing near his 3 16CV2627-LAB(JMA) 1 stopped vehicle, and rammed into the police cruiser with sufficient force to move 2 the car ten feet. Id. When officers attempted to subdue and detain him, Wright 3 repeatedly asked to be killed. Id. A pipe with cocaine base residue and a bottle 4 of Vicodin were found in the vehicle and a blood test established Wright was 5 under the influence of cocaine, amphetamine and opiates. Id. at 41. In September 2011, Wright pleaded guilty to aggravated assault, admitted 6 7 the 1990 strike, and agreed to a ten-year sentence for the 2011 crimes, which 8 was based on the upper term of five years for assault, doubled to ten years due 9 to the strike. Id., Ex. A at 26; Ex. S-3 at 36. He agreed the 2011 crimes violated 10 the terms of his 2007 probation. Id., Ex. A at 148. He also agreed to a reduced 11 term of three years and four months, based upon sixteen months for the 2007 12 conviction plus one-year each for the two prior terms in prison, instead of the 13 originally imposed, but suspended, term. Id., Ex. A at 26; Ex. S-3 at 37. The 14 sentence for both convictions were to be served consecutively, for a total of 15 thirteen years and four months in prison. Id. His plea deal was accepted by the 16 trial court during a sentencing hearing held in October 2011, at which time the 17 court sentenced Wright to incarceration for the agreed-upon term of thirteen 18 years and four months for both the 2007 and 2011 convictions. Id., Ex. S-3, at 19 36-40. 20 G. Wright’s Appeal 21 Wright then filed a notice of appeal that he later formally abandoned. Id., 22 Ex. A at 52; Ex. B. The California Court of Appeal accepted Wright’s 23 abandonment of the appeal and dismissed the case on April 25, 2012. Id., Ex. B 24 & C. 25 // 26 // 27 // 28 // 4 16CV2627-LAB(JMA) 1 H. Wright’s Collateral Challenges 2 On July 1, 2015, Wright constructively filed2 a habeas corpus petition in the 3 San Diego Superior Court, challenging his sentence on the basis that it had been 4 enhanced by prior convictions from 1996 and 2004 that were eligible to be 5 reduced to misdemeanors by Proposition 47, a 2014 voter passed initiative. Id., 6 Ex. D; see also Cal. Penal Code § 1170.18. The court denied the petition on July 7 17, 2015, finding that although Wright’s request was procedurally flawed, even if 8 he had filed a petition for sentence modification, instead of a habeas petition, the 9 crimes for which Wright’s sentence was imposed (the 2007 cocaine sale and the 10 2011 aggravated assault) were not eligible for relief under Proposition 47. Id., Ex. 11 3. The court also found both of Wright’s prior terms in prison rested, at least in 12 part, on convictions that remained felonies even after Proposition 47. Id. On August 3, 2015, Wright filed a similar habeas corpus petition with the 13 14 California Court of Appeal. Id., Ex. F. The California Court of Appeal denied his 15 habeas petition for many of the same reasons the Superior Court cited: e.g., 16 Wright had not formally requested the trial court reduce his crimes under 17 Proposition 47; until such a reduction occurred, there was no basis to consider a 18 change to his sentence; and Wright’s pleadings did not include sufficient 19 documentary evidence for one to believe his sentence rested on crimes that all 20 might be reduced. Id., Ex. G (citing, e.g., People v. Duvall, 9 Cal. 4th 464, 474 21 (1995)).) Wright then filed a petition for habeas review with the California 22 Supreme Court, again invoking Proposition 47. Id., Ex. H. The Supreme Court 23 issued a summary denial on January 27, 2016, citing Duvall. Id., Ex. I. 24 // 25 26 See Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000) (applying “mailbox rule” which provides for the constructive filing of court documents as of the date they are submitted to prison authorities for mailing to the court). The Court utilizes constructive filing dates herein. See also Mot. to Dismiss, Ex. D, p. 7 of 7. 2 27 28 5 16CV2627-LAB(JMA) 1 While these habeas petitions were proceeding, Wright had some success 2 in the trial court when, on September 14, 2015, the San Diego Superior Court 3 granted his Petition for Resentencing and reduced two of his convictions 4 (possession of a controlled substance in jail, Cal. Health & Safety Code § 5 11377(a), and burglary, Cal. Penal Code § 459) to misdemeanors. Id., Ex. J. 6 In January 2016, Wright filed another habeas corpus petition with the 7 California Court of Appeal, in which he argued he was entitled to resentencing 8 because the prison terms he served for the convictions that were reclassified as 9 misdemeanors could no longer be used as a basis to enhance his current prison 10 sentence. Id., Ex. K & L. He also argued his most recent conviction must be 11 vacated because the trial court did not advise Wright of his rights, i.e., “the 12 privilege against compulsory self-incrimination, the right to trial by jury, and the 13 right to confront one’s accusers,” before accepting his stipulation regarding the 14 prior convictions and, therefore, Wright did not properly waive these rights. Id., 15 Ex. K at 9-10 of 21. 16 The California Court of Appeal denied this habeas petition on January 29, 17 2016, holding Wright’s trial rights claim was procedurally barred because, among 18 other reasons, Wright was untimely by waiting more than four years to raise it. 19 Id., Ex. L at 1 (citing In re Reno, 55 Cal. 4th 428, 459 (2012) and In re Swain, 34 20 Cal. 2d 300, 302 (1949). The Court of Appeal held this claim was further barred 21 because Wright failed to obtain the certificate of probable cause necessary to 22 challenge the validity of a guilty plea on appeal. Id. at 2 (citing In re Brown, 9 Cal. 23 3d 679, 683 (1973). Relief on both claims was also denied because Wright had 24 not provided sufficient evidence to establish the facts were as he had alleged 25 regarding either the plea colloquy or the nature of all of his prior convictions and 26 sentence. Id. at 2 (citing Duvall, at 474). 27 28 Wright next filed a similarly framed habeas corpus petition in the California Supreme Court. Id., Ex. M. The California Supreme Court issued a summary 6 16CV2627-LAB(JMA) 1 denial of this petition on May 11, 2017, citing In re Clark, 5 Cal. 4th 750, 767-69 2 (1993). Id., Ex. N 3 On June 18, 2016, Wright constructively filed another habeas corpus 4 petition with the California Court of Appeal, in which he reasserted his prior 5 claims that the prison term enhancements should be vacated due to the 6 reclassification of his convictions, and because the trial court accepted his 7 admission of the prior conviction allegations without advising him of his trial rights 8 on those allegations or eliciting his waiver of those rights. Id., Ex. O at 9-12 of 22. 9 He also raised a new claim, arguing prosecutors had introduced false evidence 10 of his prior conviction. Id. The California Court of Appeal denied this petition on 11 July 5, 2016, holding his claims were procedurally barred as untimely and 12 successive. Id., Ex. P. (citing Reno, 55 Cal. 4th at 459, 496-97, 501, Swain, 34 13 Cal. 2d at 302, and Clark, 5 Cal. 4th at 769).) Thereafter, on July 16, 2015, Wright constructively filed another petition for 14 15 habeas review with the California Supreme Court, again raising the false- 16 evidence claim, and alleging trial counsel was ineffective for failing to ensure 17 Wright’s admission of the prior conviction allegations was appropriate. Id., Ex. Q. 18 The California Supreme Court denied relief on this petition on September 21, 19 2016. Id., Ex. R (citing In re Robbins, 18 Cal. 4th 770, 780 (1998), and Clark, 5 20 Cal. 4th at 467-69). 21 F. Federal Petition 22 Wright constructively filed the Petition currently before the Court on 23 October 4, 2016,3 in which he asserts three claims: (1) the prosecution 24 introduced false evidence of his prior conviction; (2) the trial court wrongfully 25 accepted Wright’s admission of the prior conviction allegations without first 26 27 28 3 See Petition, p. 43 of 43. 7 16CV2627-LAB(JMA) 1 advising him of his trial rights on those allegations or eliciting his waiver of those 2 rights; and (3) a double-jeopardy violation involving the destruction of evidence. 3 Petition, pp. 4-5 of 43. 4 II. DISCUSSION 5 A. Wright’s First and Second Claims are Procedurally Defaulted 6 Under the doctrine of procedural default, a federal court may not review the 7 merits of a claim, including a constitutional claim, that a state court declined to 8 consider because the petitioner failed to comply with a state procedural rule. 9 Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). So long as the decision of the 10 state court rests on a state law ground that is “independent” of federal law and is 11 “adequate” to support the judgment, a federal habeas court will not review a 12 claim rejected by a state court on procedural grounds. Beard v. Kindler, 558 U.S. 13 53 (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). When the 14 adequate and independent ground for a state court’s rejection of a federal claim 15 involves a violation of state procedural requirements, a habeas petitioner is said 16 to have procedurally defaulted his claim, and the court cannot reach the merits of 17 the federal claim. Coleman, 501 U.S. at 729-730. To do so would not only be an 18 end run around the limitation on direct review by the Supreme Court, but would 19 also permit avoidance of the exhaustion requirement and infringe upon “the 20 States’ interest in correcting their own mistakes.” Id. at 730-732. 21 A state procedural rule is “independent” if the state law basis for the 22 decision is not interwoven with federal law. La Crosse v. Kernan, 244 F.3d 702, 23 704 (9th Cir. 2000). A state procedural rule is “adequate” if it is firmly established 24 and regularly followed. Walker v. Martin, 562 U.S. 307, 316 (2011). A habeas petitioner may obtain federal review of a procedurally defaulted 25 26 claim only by demonstrating “cause” for the failure to comply with the state 27 procedural rule and “prejudice” arising from the default. Coleman, 501 U.S. at 28 750. Adequate "cause" for a default must be an "external" factor that cannot 8 16CV2627-LAB(JMA) 1 fairly be attributed to the petitioner. Id., at 753. If insufficient cause is shown, the 2 Court need not reach the prejudice question. Smith v. Baldwin, 510 F.3d 1127, 3 1147 (9th Cir. 2007). 4 A procedural default bars consideration of a federal claim on either direct or 5 habeas review “only if the last state court rendering a judgment in the case 6 clearly and expressly states that its judgment rests on a state procedural bar.” 7 Harris v. Reed, 489 U.S. 255, 263 (1989). Wright’s first claim, that he is entitled 8 to federal habeas relief due to the prosecution’s presentation of false evidence 9 regarding Wright’s prior conviction, was raised in his third petition for habeas 10 review that was constructively filed with the California Supreme Court on July 21, 11 2015. Mot. to Dismiss, Ex. Q. His second claim, in which he contends the trial 12 court failed to advise him of his trial rights prior to his admission of the prior 13 conviction allegations, was presented to the California Supreme Court in his 14 second petition for habeas review. Mot. to Dismiss, Ex. M. In both instances, 15 relief was summarily denied under Clark and, with respect to his second claim, 16 relief was also denied under Robbins. In California, “[a] summary denial citing 17 Clark and Robbins means that the petition is rejected as untimely.” Walker, 562 18 U.S. at 313. 19 California’s timeliness bar has been held to be independent. See Bennett 20 v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). In Walker, the U.S. Supreme Court 21 found California’s timeliness requirement for habeas petitions to be adequate as 22 it is clearly established and consistently applied. Walker, 131 S.Ct at 1128-31. 23 Therefore, the California Supreme Court’s denial of Petitioner’s second and third 24 habeas petitions as untimely rests upon on a state law ground that is 25 “independent” of federal law and is “adequate” to support the judgment, and 26 Petitioner’s first and second claims are procedurally defaulted unless he can 27 show cause and prejudice to excuse the default, neither of which he alleges 28 exists. 9 16CV2627-LAB(JMA) 1 B. Wright’s Third Claim is Procedurally Defaulted 2 Wright’s third claim, for double jeopardy, was not raised with the California 3 Supreme Court at all. His failure to do so implicates the exhaustion and 4 procedural default doctrines. Gray v. Netherland, 518 U.S. 152, 161-162 (1996). 5 Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief "unless it 6 appears that the applicant has exhausted the remedies available in the courts of 7 the State." The exhaustion doctrine, like the procedural default doctrine, is 8 principally designed to protect the state courts' role in the enforcement of federal 9 law and prevent disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 10 509, 518 (1982). The exhaustion requirement is satisfied by providing the state 11 courts with a "fair opportunity" to rule on Petitioner's constitutional claims. 12 Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is 13 exhausted once it is presented to a state's highest court, either on direct appeal 14 or through state collateral proceedings. See Sandgathe v. Maass, 314 F.3d 371, 15 376 (9th Cir. 2002). Although Wright did not raise his double jeopardy claim with the state 16 17 courts, the exhaustion requirement is satisfied, “if it is clear that (the habeas 18 petitioner’s) claims are now procedurally barred under (state) law.” Grey, 518 19 U.S. at 161, quoting Castille v. Peoples, 489 U.S. 346, 351 (1989); Engle v. 20 Isaac, 456 U.S. 107, 125-26 n.28 (1982) (noting that the exhaustion requirement 21 applies “only to remedies still available at the time of the federal petition.”); 22 Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (same), citing Phillips v. 23 Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (“the district court 24 correctly concluded that [the] claims were nonetheless exhausted because ‘a 25 return to state court for exhaustion would be futile.’”); Cassett v. Stewart, 406 26 F.3d 614, 621 n.5 (9th Cir. 2005) (“A habeas petitioner who has defaulted his 27 federal claims in state court meets the technical requirements for exhaustion; 28 // 10 16CV2627-LAB(JMA) 1 there are no state remedies any longer ‘available’ to him.”), quoting Coleman, 2 501 U.S. at 732. Wright has already filed multiple state habeas petitions which were denied 3 4 with citations to numerous procedural bars, including specifically timeliness under 5 Clark and Robbins. Furthermore, his direct appeal has been final since May 6, 6 2012. 4 Because it has been over five years since his conviction became, and 7 because the state courts have already specifically denied Wright’s prior habeas 8 petitions due to untimeliness, it is clear any attempt by Wright to return to state 9 court at this time in order to seek further post-conviction relief with respect to his 10 double jeopardy claim would also meet with the imposition of a procedural bar. 11 See Clark, 5 Cal.4th at 797-98 (1993) (“the general rule is still that, absent 12 justification for the failure to present all known claims in a single, timely petition 13 for writ of habeas corpus, successive and/or untimely petitions will be summarily 14 denied,” and describing the “fundamental miscarriage of justice” exception to that 15 rule); See also Huynh v. Lizarraga, 2016 U.S. Dis. LEXIS 67489 *7 (S.D. Cal., 16 Mar. 1, 2016) (petitioner’s habeas claim was procedurally defaulted where it was 17 clear any attempt to return to state court would meet a procedural bar under 18 Clark). 19 C. 20 Wright’s federal habeas petition also runs afoul of the AEDPA’s statute of Wright’s Federal Habeas Petition was Untimely Filed 21 limitations, which applies to his presentation of claims in this Court. Calderon v. 22 U.S. District Court (Beeler), 128 F.3d 1283, 1286-87 (9th Cir. 1997), as amended 23 on denial of rhg. and rhg. en banc, cert. denied, 522 U.S. 1099 (1998), overruled 24 on other grounds in Calderon v. U.S. District Court, 163 F.3d 530 (9th Cir. 1998), 25 cert. denied, 523 U.S. 1063 (1999). Pursuant to 28 U.S.C. § 2244(d)(1): 26 // 27 28 4 See section II.C, infra, p. 11, re: Cal. R. Ct. 8.366(b)(2)(B) and Cal. R. Ct. 8.500(e)(1). 11 16CV2627-LAB(JMA) 1 2 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 3 4 5 6 7 8 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 9 10 11 12 13 14 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 28 U.S.C. § 2244(d)(1)(A)-(D). Here, subparagraphs (B) through (D) 17 plainly are not applicable, and Wright has provided no argument that they 18 apply. Thus, subparagraph (A) of 28 U.S.C. § 2244(d)(1) applies to his 19 claims. Since Wright did not pursue direct review with the California 20 Supreme Court, the conclusion of direct review is tied to the Court of 21 Appeal’s acceptance of Wright’s abandonment of the appeal and dismissal 22 of the case on April 25, 2012. The Court of Appeal’s decision became final 23 on that day. Cal. R. Ct. 8.366(b)(2)(B). At that point, Wright had only ten 24 days to file a petition for review with the California Supreme Court. Cal. R. 25 Ct. 8.500(e)(1). He did not, so his judgment became final on Monday, May 26 6, 2012, when the time for him to seek such review expired. Gonzalez v. 27 Thaler, 132 S. Ct. 641, 653-654 (2012). The federal statute of limitations 28 under 28 U.S.C. § 2244(d), then began to run and expired one year later, 12 16CV2627-LAB(JMA) 1 on Monday, May 6, 2013, absent circumstances that would merit statutory 2 or equitable tolling. 3 Statutory Tolling 4 The AEDPA tolls its one-year limitations period for the “time during which a 5 properly filed application for State post-conviction or other collateral review . . . is 6 pending.” 28 U.S.C. § 2244(d)(2). “An application for post-conviction review is 7 pending while a California petitioner completes a full round of state collateral 8 review, including during the period between (1) a lower court’s adverse 9 determination, and (2) the prisoner’s filing of a notice of appeal, provided that the 10 filing of the notice of appeal is timely under state law.” Waldrip v. Hall, 548 F.3d 11 729, 724 (9th Cir. 2008) (citations and internal quotations omitted, emphasis in 12 original). In California, “[a]s long as the prisoner filed a petition for appellate 13 review within a ‘reasonable time,’ he could count as ‘pending’ (and add to the 1- 14 year time limit) the days between (1) the time the lower state court reached an 15 adverse decision, and (2) the day he filed a petition in the higher state court.” 16 Evans v. Chavis, 546 U.S. 189, 193 (2006) (citing Carey v. Saffold, 536 U.S. 214, 17 222-23 (2002)). 18 Here, Wright did not file his first state habeas petition until July 1, 2015, 19 well after the AEDPA statute of limitations ended. Thus, the pendency of that 20 petition, or any other habeas petition filed subsequently by Wright, could not toll 21 the already-expired limitations period pursuant to 28 U.S.C. § 2244(d)(2). See 22 Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (finding that statutory tolling is 23 not available when first state habeas petition is filed after the AEDPA limitations 24 period has expired). Statutory tolling cannot revive a limitations period that has 25 already ended; it can only serve to pause a clock that has not already run. 26 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Patterson, 251 F.3d at 27 1247. Once the federal limitations period has ended, the filing of a state habeas 28 petition cannot revive it. Ferguson, 321 F.3d at 823; Jiminez, 276 F.3d at 482. 13 16CV2627-LAB(JMA) 1 Therefore, none of Wright’s collateral filings had any effect on the AEDPA statute 2 of limitations as they were each filed after the statute of limitations had expired 3 on May 6, 2013, and his federal petition is time-barred unless he is entitled to 4 equitable tolling. 5 Equitable Tolling 6 Equitable tolling of the one-year statute of limitations on habeas petitions is 7 permitted in the Ninth Circuit, but a petitioner bears the burden of showing that 8 equitable tolling is appropriate. Espinoza-Matthews v. State of California, 432 9 F.3d 1021, 1026 (9th Cir. 2005). In order to receive equitable tolling, Wright must 10 establish two elements: “(1) that he has been pursuing his rights diligently, and 11 (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 12 418. Equitable tolling is available only if some “external force” beyond the 13 Petitioner’s direct control caused the untimeliness. Velasquez v. Kirkland, 639 14 F.3d 964, 969 (9th Cir. 2011). Equitable tolling is unavailable in most cases, and 15 “the threshold necessary to trigger equitable tolling . . . is very high, lest the 16 exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 17 2002). Wright has not set forth any facts or arguments that equitable tolling should 18 19 apply, and thus he has not demonstrated diligence or extraordinariness. 20 Accordingly, the AEDPA’s statute of limitations should not be equitably tolled in 21 his case. 22 III. 23 CONCLUSION AND RECOMMENDATION Based on the foregoing, the Court RECOMMENDS Respondent’s Motion 24 to Dismiss be GRANTED and the Petition be DISMISSED WITH PREJUDICE. 25 This report and recommendation of the undersigned Magistrate Judge is 26 submitted to the United States District Judge assigned to this case, pursuant to 27 the provision of 28 U.S.C. 636(b)(1). 28 // 14 16CV2627-LAB(JMA) 1 IT IS ORDERED that no later than July 28, 2017, any party to this action 2 may file written objections with the Court and serve a copy on all parties. The 3 document should be captioned “Objections to Report and Recommendation.” 4 IT IS FURTHER ORDERED that any reply to the objections shall be filed 5 with the Court and served on all parties no later than August 4, 2017. The 6 parties are advised that failure to file objections within the specified time may 7 waive the right to raise those objections on appeal of the Court’s order. Martinez 8 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 Dated: July 11, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 16CV2627-LAB(JMA)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?