Acosta v. Hill

• Court: District Court, S.D. California
• Decided: November 21, 2019
• Docket: 3:19-cv-01190
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NOEMI DEL CARMEN ACOSTA, Case No.: 19CV1190-H(KSC)

12 Petitioner, REPORT & RECOMMENDATION 13 v. RE: MOTION TO DISMISS [DOC. NO. 6.] 14 RICK HILL, WARDEN, 15 Respondent. 16 17 18 For the reasons set forth below, the Court recommends that the Motion to 19 Dismiss filed by Respondent Warden Rick Hill (“Respondent”) be GRANTED and that 20 the First Amended Petition for Writ of Habeas Corpus filed by Petitioner Noemi Del 21 Carmen Acosta (“Petitioner”) be DISMISSED with prejudice. 22 I. Introduction and Procedural Background 23 On January 26, 2016, the abstract of judgment was entered by the Superior Court 24 of California, County of San Diego, in case number SCD260588, for Petitioner’s plea of 25 guilty to one count of willful harm or injury to a child, Cal. Penal Code § 273a(a), and 26 admission of personally inflicting great bodily injury on a child victim who was under the 27 28 1 age of five. Cal. Penal Code § 12022.7(d). (Doc. No. 7-1, Lodgment 1, p. 1. ) She was 2 sentenced to nine years in state prison and did not appeal the conviction. (Doc. No. 7-1, 3 Lodgment 1, p. 1; Doc. No. 7-4, Lodgment 4, p. 1; Doc. No. 7-6, Lodgment 6, p. 1.) 4 Over three years later, on March 13, 2019, Petitioner constructively filed a state 5 habeas corpus petition in the San Diego County Superior Court, case HC23781, raising a 6 collateral challenge to the judgment entered in SCD260588. (Doc. Nos. 7-2 & 7-3, 7 Lodgments 2 & 3.) In that petition she alleged: 1) she was provided ineffective 8 assistance of counsel because her trial attorney did not adequately investigate the relevant 9 facts and law; and 2) her guilty plea is constitutionally invalid because it was coerced by 10 trial counsel and was not entered into intelligently, knowingly, or voluntarily. (Doc. No. 11 7-3, Lodgment No. 3, pp. 12-16.) That court denied the petition on April 18, 2019, in 12 substantial part because it was untimely filed. (Doc. No. 7-4, Lodgment No. 4, pp. 2-3.) 13 On or about May 13, 2019, Petitioner constructively filed a Petition for Writ of 14 Habeas Corpus in the California Court of Appeal, Fourth Appellate District, Division 15 One, case D075841, asserting the same grounds for relief raised in her previous habeas 16 petition filed in the Superior Court. (Doc. No. 7-5, Lodgment No. 5, pp. 17-22.) On May 17 21, 2019, the Court of Appeal denied the petition because it was untimely. (Doc. No. 7-6, 18 Lodgment 6, p. 2.) 19 Petitioner did not file a state habeas corpus petition in the California Supreme 20 Court prior to initiating this action with the constructive filing of her federal habeas 21 petition on June 19, 2019. (cf. Doc. No. 7-7, Lodgment 1, and Doc. No. 1.) 22 On September 6, 2019, Respondent filed a Motion to Dismiss in which he argues 23 the petition should be dismissed with prejudice because Petitioner’s claims are time- 24 barred by the one-year statute of limitations set out in the Antiterrorism and Effective 25 Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). (Doc. No. 6.) 26

27 1 When referring to page numbers for documents filed with the Court, the Court uses the page 28 1 Petitioner has not filed an opposition to the Motion to Dismiss, however, on 2 November 14, 2019, she filed a First Amended Petition, in which she raises the same 3 claims made to the state courts and requests the Court stay her federal claims while she 4 pursues exhaustion with the California Court of Appeal. (Doc. No. 9, pp. 7 & 17-22.) 5 Respondent filed a brief in reply to Petitioner’s request for a stay and abeyance on 6 November 15, 2019. (Doc. No. 10.) 7 As discussed below, Respondent’s Motion to Dismiss should be granted and the 8 First Amended Petition should be dismissed with prejudice because Petitioner’s claims 9 are time-barred. 10 II. The Petition Is Time-Barred Under The AEDPA 11 The statute of limitations under the AEDPA applies to Petitioner’s presentation of 12 claims in this Court. Calderon v. U.S. District Court (Beeler), 128 F.3d 1283, 1286-87 13 (9th Cir. 1997), as amended on denial of rhg. and rhg. en banc, cert. denied, 522 U.S. 14 1099 (1998), overruled on other grounds in Calderon v. U.S. District Court, 163 F.3d 15 530 (9th Cir. 1998), cert. denied, 523 U.S. 1063 (1999). Pursuant to 28 U.S.C. § 16 2244(d)(1): 17 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 18 court. The limitation period shall run from the latest of – 19 (A) the date on which the judgment became final by the 20 conclusion of direct review or the expiration of the time for 21 seeking such review;

22 (B) the date on which the impediment to filing an application 23 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented 24 from filing by such State action; 25 (C) the date on which the constitutional right asserted was 26 initially recognized by the Supreme Court, if the right has been 27 newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 28 1 (D) the date on which the factual predicate of the claim or 2 claims presented could have been discovered through the 3 exercise of due diligence.

5 28 U.S.C. § 2244(d)(1)(A)-(D). Here, subparagraphs (B) through (D) plainly do not 6 apply, and Petitioner has provided no argument that they apply. Thus, subparagraph 7 (A) of 28 U.S.C. § 2244(d)(1) applies to Petitioner’s claim. 8 Because Petitioner did not file an appeal, her conviction became final on March 26, 9 2016, sixty days after judgment was entered in her case on January 26, 2016. Cal. Rules 10 of Court, Rule 31(d); See also Lewis v. Mitchell, 173 F. Supp. 2d 1057, 1060 (C.D. Cal. 11 2001.) (Under California law, a conviction is final sixty days after the Superior Court 12 proceedings are concluded.) Absent any applicable tolling, Petitioner then had 365 days, 13 until March 26, 2017, to timely initiate a federal habeas petition. Because she did not 14 initiate this action until June 19, 2019, over three years after the limitations period 15 expired, this Court next analyzes whether Petitioner is entitled to statutory or equitable 16 tolling. 17 A. Statutory Tolling 18 The AEDPA tolls its one-year limitations period for the “time during which a 19 properly filed application for State post-conviction or other collateral review . . . is 20 pending.” 28 U.S.C. § 2244(d)(2). “An application for post-conviction review is pending 21 while a California petitioner completes a full round of state collateral review, including 22 during the period between (1) a lower court’s adverse determination, and (2) the 23 prisoner’s filing of a notice of appeal, provided that the filing of the notice of appeal is 24 timely under state law.” Waldrip v. Hall, 548 F.3d 729, 724 (9th Cir. 2008) (citations and 25 internal quotations omitted, emphasis in original). In California, “[a]s long as the prisoner 26 filed a petition for appellate review within a ‘reasonable time,’ he could count as 27 ‘pending’ (and add to the 1-year time limit) the days between (1) the time the lower state 28 court reached an adverse decision, and (2) the day he filed a petition in the higher state 1 court.” Evans v. Chavis, 546 U.S. 189, 193 (2006) (citing Carey v. Saffold, 536 U.S. 214, 2 222-23 (2002)). 3 Here, Petitioner did not file her first state habeas petition until March 13, 2019, 4 well after the AEDPA statute of limitations ended. (Doc. Nos. 7-2 & 7-3, Lodgments 2 & 5 3.) Thus, the pendency of that petition, or any other habeas petition filed in subsequently 6 in the state courts by Petitioner, could not toll the already-expired limitations period 7 pursuant to 28 U.S.C. § 2244(d)(2). See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 8 2001) (finding that statutory tolling is not available when first state habeas petition is 9 filed after the AEDPA limitations period has expired). Statutory tolling cannot revive a 10 limitations period that has already ended; it can only serve to pause a clock that has not 11 already run. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Patterson, 251 12 F.3d at 1247. Once the federal limitations period has ended, the filing of a state habeas 13 petition cannot revive it. Ferguson, 321 F.3d at 823; Jiminez, 276 F.3d at 482. 14 Furthermore, the California state courts both denied Petitioner’s collateral filings 15 on the ground that they were untimely under California state law. Untimely or 16 procedurally defective state petitions are improperly filed and do not toll the statute of 17 limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005); Harris v. Carter, 515 F.3d 18 1051, 1053 (9th Cir. 2008). 19 Therefore, neither of Petitioner’s collateral filings had any effect on the AEDPA 20 statute of limitations as they were each filed after the statute of limitations had expired 21 on March 26, 2017. Petitioner’s federal petition is time-barred unless she is entitled to 22 equitable tolling. 23 B. Equitable Tolling 24 Equitable tolling of the one-year statute of limitations on habeas petitions is 25 permitted in the Ninth Circuit, but Petitioner bears the burden of showing that equitable 26 tolling is appropriate. Espinoza-Matthews v. State of California, 432 F.3d 1021, 1026 27 (9th Cir. 2005). Petitioner must establish two elements: “(1) that (s)he has been pursuing 28 (her) rights diligently, and (2) that some extraordinary circumstance stood in (her) way.” 1 Pace, 544 U.S. at 418. Equitable tolling is available only if some “external force” 2 beyond the petitioner’s direct control caused the untimeliness. Velasquez v. Kirkland, 3 639 F.3d 964, 969 (9th Cir. 2011). Equitable tolling is unavailable in most cases, and 4 “the threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions 5 swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). 6 Petitioner has set forth no facts or arguments that equitable tolling should apply, 7 and thus she has not demonstrated either diligence or extraordinariness. Accordingly, the 8 AEDPA’s statute of limitations should not be equitably tolled in his case. 9 C. Request for Stay and Abeyance 10 In her First Amended Petition, Petitioner requests the Court hold her federal habeas 11 claims in abeyance, while she raises her claims with the California Supreme Court, so 12 that she can fully exhaust her state remedies. (Doc. No. 9, p. 7.) As explained above, 13 Petitioner’s federal habeas claims are time-barred, irrespective of the fact they were not 14 raised with the California Supreme Court prior to her filing her claims here. Therefore, 15 her request for stay and abeyance should be denied. 16 III. Conclusion 17 Based on the foregoing, IT IS RECOMMENDED that the District Court GRANT 18 respondent’s Motion to Dismiss [Doc. No. 6] “for failure to state a claim upon which 19 relief can be granted.” Fed.R.Civ.P. 12(b)(6). 20 This Report and Recommendation is submitted to the assigned United States 21 District Judge pursuant to Title 28, United States Code, Section 636(b), and Civil Local 22 Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 23 California. 24 IT IS HEREBY ORDERED that no later than December 6, 2019 any party to this 25 action may file and serve written objections to this Report and Recommendation. The 26 document should be captioned “Objection to Report and Recommendation.” 27 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 28 within seven (7) days of the filing of the objections. The parties are advised that failure 1 || to file objections with the specified time may waive the right to raise those objections on 2 || appear of this Court order. Martinez v. Yist, 951 F.2d 1153, 1156 (th Cir. 1991). 3 IT IS SO ORDERED. 4 ||Dated: November 21, 2019 yy □□□ 5 Mf Ze ff 6 Hori. Karen 8S. Crawford , United States Magistrate Judge

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