Foster v. Baca et al

Filing 23

ORDER that Respondents' motion to dismiss ECF No. 18 is granted; Respondents' first and second motions for extension of time to file a response to the amended petition ECF Nos. 16 and 17 are both granted nunc pro tunc; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 2/26/2019. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN MICHAEL FOSTER,

Case No. 3:17-cv-00317-MMD-WGC
Petitioner,

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ORDER

v.
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ISIDRO BACA, et al.,
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Defendants.
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I.

SUMMARY

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This pro se habeas matter under 28 U.S.C. § 2254 comes before the Court on

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Respondents’ motion to dismiss Petitioner John Michael Foster’s amended petition as

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untimely (“Motion”) (ECF No. 18). Foster did not file an opposition or respond to the motion

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in any way. The Court will grant the Motion.

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II.

BACKGROUND

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Foster was charged with six counts, and on August 22, 2011, he pleaded guilty to

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failure to stop upon signal of a police officer in a manner which endangers other persons

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or property (count 2) and driving under the influence of alcohol – third offense in seven

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years (exhibit 32). 1 On August 24, 2011, a jury convicted Foster of failure to stop upon

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signal of a peace officer causing bodily harm to another person (count 4) and battery with

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a deadly weapon (count 5). (Exh. 25.) The state district court sentenced him as follows:

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count 2 – 12 to 30 months; count 4 – 24 to 60 months, concurrent with count 2; count 5 –

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24 to 96 months, consecutive to counts 2 and 4; count 6 – 24 to 60 months, consecutive

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to counts 2, 4 and 5. (Exh. 32.) Judgment of conviction was filed on October 19, 2011.

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(Id.)

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1Exhibits

referenced in this order are exhibits to Respondents’ motion to dismiss,
ECF No. 18, and are found at ECF Nos. 19–22.

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The Nevada Supreme Court affirmed the convictions on November 15, 2012 and

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affirmed the denial of Foster’s state postconviction habeas corpus petition on March 15,

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2017. (Exhs. 48, 114.)

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Foster dispatched his federal petition for mailing about May 19, 2017 (ECF No. 1-

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1). This Court dismissed the petition with leave to amend because the petition was not on

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the court-required form and failed to set forth any grounds for federal habeas relief (ECF

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No. 11). Foster filed an amended petition on February 7, 2018 (ECF No. 12). Respondents

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have moved to dismiss the petition as untimely (ECF No. 18).

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III.

DISCUSSION

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A.

Relation Back

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Respondents argue that Foster’s amended petition does not relate back to a timely-

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filed petition and should thus be dismissed as untimely (ECF No. 18 at 4–6). The Court

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agrees.

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A new claim in an amended petition that is filed after the expiration of the

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Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will be

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timely only if the new claim relates back to a claim in a timely-filed pleading under Rule

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15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of “the

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same conduct, transaction or occurrence” as a claim in the timely pleading. Mayle v. Felix,

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545 U.S. 644 (2005). In Mayle, the United States Supreme Court held that habeas claims

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in an amended petition do not arise out of "the same conduct, transaction or occurrence"

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as claims in the original petition merely because the claims all challenge the same trial,

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conviction or sentence. Id. at 655–64. Rather, under the construction of the rule approved

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in Mayle, Rule 15(c) permits relation back of habeas claims asserted in an amended

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petition “only when the claims added by amendment arise from the same core facts as the

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timely filed claims, and not when the new claims depend upon events separate in ‘both

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time and type’ from the originally raised episodes.” Id. at 657. In this regard, the reviewing

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court looks to “the existence of a common ‘core of operative facts’ uniting the original and

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newly asserted claims.” Id. at 646. A claim that merely adds “a new legal theory tied to the
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same operative facts as those initially alleged” will relate back and be timely. Id. at 659 &

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n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013).

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Here, the Nevada Supreme Court affirmed Foster’s convictions on direct appeal on

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November 15, 2012. (Exh. 48.) Foster did not seek a writ of certiorari, and therefore, his

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conviction became final on February 13, 2013. Jimenez v. Quarterman, 555 U.S. 113,

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119–20 (2009) (conviction final when Supreme Court denies petition for writ of certiorari,

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or when time to seek writ expires); see also Sup. Ct. R. 13(1). On November 8, 2013,

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Foster filed his state petition for writ of habeas corpus. (Exh. 58.) As he had no properly

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filed application for state postconviction or other collateral review pending between

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February 13, 2013, and November 8, 2013, Foster utilized 268 days of his AEDPA

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limitations period. 28 U.S.C. § 2244(d)(2).

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The Nevada Supreme Court affirmed the denial of Foster’s state postconviction

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petition, and remittitur issued on April 10, 2017. (Exh. 116.) Thirty-seven days of untolled

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time passed until Foster filed his original federal petition on May 17, 2017. 28 U.S.C. §

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2244(d)(2). The limitations period thereafter expired 61 days later on July 17, 2017.

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Duncan v. Walker, 533 U.S. 167, 180 (2001) (filing federal action does not toll AEDPA

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limitations period). Foster filed his amended petition more than six months later on

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February 7, 2018 (ECF No. 12). Accordingly, the amended petition is untimely. Thus, the

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claims in the amended petition must relate back to Foster’s original petition in order to be

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deemed timely.

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However, as Respondents point out, the Court dismissed Foster’s original filing with

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leave to amend because the purported petition was not on the Court-required form. 2 (ECF

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No. 11.) Nor did the petition substantially comply with the required-form. The petition states

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the length of the sentences, the charges for which Petitioner was convicted, the post-

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conviction proceedings, and a general request for “a full review or evidentiary hearing

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based on Nasby v. McDaniel . . .”. (ECF No. 1-1.) The petition does not set forth any

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As noted earlier, Foster did not file a response to the motion to dismiss.
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grounds for federal habeas relief. Id. Thus, there are no facts to which Foster’s amended

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claims can relate back. Even pro se petitioners must provide some factual assertions to

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later satisfy the relation-back standard. Ross v. Williams, 896 F.3d 958, 972–973 (9th Cir.

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2018). The amended petition is untimely and cannot relate back to Foster’s original filing.

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As discussed above, the amended petition is dismissed as untimely.

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B.

Certificate of Appealability

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This is a final order adverse to the Foster. As such, Rule 11 of the Rules Governing

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Section 2254 Cases requires this court to issue or deny a certificate of appealability

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(“COA”). Accordingly, the Court has sua sponte evaluated the claims within the petition for

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suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281

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F.3d 851, 864–65 (9th Cir. 2002).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when a petitioner “has

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made a substantial showing of the denial of a constitutional right.” With respect to claims

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rejected on the merits, the petitioner “must demonstrate that reasonable jurists would find

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the district court's assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4

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(1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate

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(1) whether the petition states a valid claim of the denial of a constitutional right and (2)

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whether the court's procedural ruling was correct. Id.

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Having reviewed its determinations and rulings in dismissing Foster’s petition, the

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court finds that none of those rulings meets the Slack standard. The Court therefore

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declines to issue a certificate of appealability.

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IV.

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CONCLUSION
It is therefore ordered that that Respondents’ motion to dismiss (ECF No. 18) is

granted. The petition is dismissed with prejudice as untimely.

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It is further ordered that Respondents’ first and second motions for extension of

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time to file a response to the amended petition (ECF Nos. 16 and 17) are both granted

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nunc pro tunc.
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The Clerk of Court is directed to enter judgment accordingly and close this case.

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DATED THIS 26th day of February 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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