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