Rodriguez v. Hatton

Filing 13

ORDER adopting 11 Report and Recommendation and granting 6 Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus with prejudice. Signed by Judge John A. Houston on 9/21/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CESAR A. RODRIGUEZ, Plaintiff, 11 12 Case No.: 16cv2803-JAH (BLM) ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 11] AND GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 6] v. 13 14 15 S. HATTON, Warden, Respondent. 16 17 18 19 20 21 22 BACKGROUND Petitioner, Cesar A. Rodriguez, a state prisoner proceeding pro se, originally filed 23 his federal Petition for Writ of Habeas Corpus on November 3, 2016 pursuant to 28 24 U.S.C. § 2254. Doc. No. 1. In his Petition, Rodriguez alleges that he was deprived of his 25 due process rights under Johnson v. United States, 135 S.Ct. 2551 (2015). Id. 26 Specifically, Petitioner argues: (1) Criminal statutes that do not give someone the 27 opportunity to know what the governing law is are unconstitutionally vague; (2) 28 California’s second degree murder statute is unconstitutional and void for vagueness 1 16cv2803-JAH (BLM) 1 under Johnson; and (3) the California Board of Parole Hearings’ thirty-year application of 2 California Penal Code §3041 (a)-(b) is arbitrary and made those provisions 3 unconstitutionally vague under Johnson. Id. at pgs. 6-8. 4 On January 26, 2017, Respondent filed a motion to dismiss the Petition for Writ of 5 Habeas Corpus. Doc. No. 6. Respondent argues the petition must be barred by the 6 statute of limitations and dismissed with prejudice. Id. at pg. 3. Specifically, Respondent 7 contends the one-year statute of limitations began to run the day after the Antiterrorism 8 and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), was passed 9 on April 25, 1996. Petitioner is not entitled to either statutory or equitable tolling. Id. at 10 pgs. 5-10. As a result, Respondent argues the ruling in Johnson does not apply to 11 Petitioner’s claims. Id. at pg. 6. Petitioner filed a response in opposition to motion to 12 dismiss on February 15, 2017. Doc. No. 10. 13 On July 5, 2017, the Honorable Barbara L. Major, United State Magistrate Judge, 14 issued a report and recommendation (“Report”) addressing the motion and 15 recommending this Court grant Respondent’s motion to dismiss the Petition with 16 prejudice. Doc. 11 at pg. 11. Objections to the Report were due by August 4, 2017. Id. 17 Petitioner filed a letter which the Court construes as an objection to the Report on August 18 1, 2017. Doc. No. 12. Petitioner argues the Report was wrong in its understanding and 19 application of Johnson. Id. at pg. 1. 20 After careful consideration of the pleadings and relevant exhibits submitted and for 21 the reasons set forth below, this Court ADOPTS the magistrate judge’s Report and 22 GRANTS Respondent’s motion to dismiss. 23 24 25 DISCUSSION I. Legal Standard The district court’s role in reviewing a magistrate judge’s report and 26 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall 27 make a de novo determination of those portions of the report…to which objection is 28 made,” and “may accept, reject, or modify, in whole or in part, the findings or 2 16cv2803-JAH (BLM) 1 recommendations made by the magistrate [judge].” Id. The party objecting to the 2 magistrate judge’s findings and recommendation bears the responsibility of specifically 3 setting forth which of the magistrate judge’s findings the party contests. See Fed. R. Civ. 4 P. 72(b). It is well-settled, under Rule 72(b), that a district court may adopt those 5 portions of a magistrate judge’s report to which no specific objection is made, provided 6 they are not clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 149 (1985). 7 8 9 II. Analysis a. Statute of Limitations Judge Major found a one year statute of limitations applied to Petitioner’s federal 10 habeas corpus petition. AEDPA imposes a one-year statute of limitations on federal 11 prisoners for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). The 12 one-year limitation applies to all habeas petitions filed by persons in custody pursuant to 13 state court judgment. Id. Here, Petitioner was confined as a result of a state court 14 judgment. Doc. No. 11 at pgs. 3-5. Pursuant to 2244(d)(1)(A), the limitation period runs 15 from the date on which the judgment became final by the conclusion of direct review or 16 the expiration of the time for seeking such review. Id. Here, Petitioner pled guilty to 17 second degree murder on January 27, 1982. Lodg. 1:3. Petitioner was sentenced on 18 February 24, 1982. Id. Petitioner’s conviction became final on April 26, 1982. Id. 19 Since Petitioner’s conviction became final prior to the enactment of AEDPA, the statute 20 of limitations expired on April 24, 1997. Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 21 2001). The instant action was not filed until November 3, 2015. Doc. No. 1. The Court 22 adopts the magistrate judge’s finding as it is not clearly erroneous. 23 24 b. Commencement of the Statutory Period Judge Major found that the latest start date was the date Petitioner’s judgment 25 became final upon expiration of the time for him to seek such review and no later date 26 would apply. Doc. No 11 at pgs. 5-8. Petitioner claims that under Johnson, his start date 27 should be June 26, 2015, the day of the Johnson ruling. Doc. No. 11 at pg. 5. Petitioner 28 3 16cv2803-JAH (BLM) 1 argues because he filed his petition in San Diego County Superior Court on June 24, 2 2016, it is timely. Id. 3 Judge Major clarified that the Johnson ruling does not apply to Petitioner’s 4 situation. Johnson was narrowly applied to the Armed Career Criminal Act (“ACCA”) 5 and not the California second degree murder statute under which Petitioner was 6 convicted. Id. at pg. 6. Moreover, Judge Major also clarified that California Penal Code 7 § 3041’s language is dissimilar to the language found in the ACCA’s residual clause. 8 Thus, the ruling in Johnson has no impact on § 3041. Id. at pg. 7. Accordingly, Judge 9 Major found the appropriate start date for analyzing the one year statute of limitations is 10 the date Petitioner’s judgment became final upon expiration of the time for him to seek 11 review under § 2244(d)(1)(A). Id. at pg. 8. The Court adopts the findings of the Report 12 as it is not clearly erroneous. 13 14 c. Statutory Tolling Judge Major found the Petition untimely as “[n]one of Petitioner’s state petitions 15 were filed before the April 24, 1997 expiration of the statute of limitations.” Id. at pg. 9. 16 The court noted that even if Petitioner’s earliest filing date of April 24, 2001 were used to 17 calculate potential tolling, Petitioner would still be four years late. Id. Petitioner did not 18 file his state habeas corpus petition until April 24, 2001. Yet an untimely petition does 19 not reinitiate the limitations period once it has already run. Ferguson v. Palmateer, 321 20 F.3d 820, 823 (9th Cir. 2003). Thus, Judge Major determined Petitioner is not entitled to 21 statutory tolling. Doc No. 11 at pg. 9. The Court finds the Report’s analysis is not 22 clearly erroneous and adopts the findings of the magistrate judge. 23 d. Equitable Tolling 24 Lastly, Judge Major found Petitioner did not satisfy the requirements laid out in 25 Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling is appropriate in cases 26 where Petitioner exercises adequate diligence in pursuing his rights unless extraordinary 27 circumstances prevent Petitioner from doing so). Id. at pg. 10. The magistrate judge 28 noted Petitioner did not file the instant petition until more than nineteen years after the 4 16cv2803-JAH (BLM) 1 date of his conviction and only after AEDPA’s limitations period expired. Id. Moreover, 2 the magistrate judge also found Petitioner was not diligent in pursuing his rights after the 3 tolling period. Id. at pgs. 10-11; Doe v. Busby, 661 F.3d 1001, 1012-13 (9th Cir. 2011) 4 (finding diligence is required to show Petitioner is eligible for equitable tolling). In 5 addition, the magistrate judge did not find any extraordinary circumstance restrained 6 Petitioner from filing his habeas petitions. Doc. No. 11 at pgs. 10-11. Thus, the 7 magistrate judge found there was not sufficient equitable tolling to deem Petitioner’s 8 petition timely. Id. at pg. 11. The Court finds the Report’s analysis is not clearly 9 erroneous and adopts the findings of the magistrate judge. 10 e. Petitioner’s Objection to the Report 11 Petitioner filed a letter which the Court construes as an objection to the Report on 12 August 1, 2017. Doc. No. 12. The letter indicates that Petitioner believes the Report was 13 wrong in its understanding and application of Johnson. Id. at pg. 1. 14 The Court only needs to consider objections that are filed in a timely manner and 15 specific in nature. See Thomas, 474 U.S. 140, 151 (1985). This Court’s independent 16 review of the record, the relevant lodgments presented by the parties, and the Report 17 (Doc. No. 11), reveals that the Magistrate Judge provided a cogent analysis of each of the 18 four claims presented by Petitioner. After reviewing Petitioner’s Objections, this Court 19 finds that Petitioner does not specifically object to the procedural background of the 20 federal or state proceedings (Id. at pgs. 1-3); to the lengthy and extensive transcript- 21 supported factual background (Id. at pgs. 3-11); or to the scope of review (Id. at pg. 3) 22 utilized by the magistrate judge. The Petitioner’s objections do not point to specific 23 findings or conclusions in the Report, but instead appear to be general objections to the 24 Report’s analysis and conclusions, making the same arguments made in the original 25 federal habeas petition. Id. at pgs. 1-17. For these reasons, the Court determines 26 Petitioner’s objection to be general in nature. 27 28 5 16cv2803-JAH (BLM) 1 The Court conducted a de novo review, independently reviewing the Report and all 2 relevant papers submitted by both parties, and finds the Report provides a cogent analysis 3 of the issues presented in the motion. 4 5 6 7 CONCLUSION AND ORDER For the reasons set forth above, IT IS HEREBY ORDERED: 1. The finding and conclusions of the magistrate judge presented in the Report (Doc. No. 11) are ADOPTED in the entirety; 8 2. Respondent’s Motion to Dismiss (Doc. No. 6) is GRANTED; 9 3. The Petition For Writ of Habeas Corpus (Doc. No. 1) is DIMISSED WITH 10 PREJUDICE. 11 12 DATED: September 21, 2017 13 14 15 _________________________________ JOHN A. HOUSTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 6 16cv2803-JAH (BLM)

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