Ashley Luther Murray Price v. W. L. Muniz

• Court: District Court, C.D. California
• Decided: October 22, 2019
• Docket: 2:18-cv-05931
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ASHLEY LUTHER MURRAY ) Case No. CV 18-5931 RSWL(JC) PRICE, ) 12 ) Petitioner, ) 13 ) v. ) ORDER ACCEPTING FINDINGS, 14 ) CONCLUSIONS, AND ) RECOMMENDATIONS OF 15 W.L. MUNIZ, Warden, ) UNITED STATES MAGISTRATE ) JUDGE 16 ) Respondent. ) 17 ________________________________ 18 I. SUMMARY 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 20 Habeas Corpus (“Petition”) and all of the records herein, including: (1) the April 21 26, 2019 Report and Recommendation of United States Magistrate Judge (“Report 22 and Recommendation” or “R&R”), recommending that the Petition be denied and 23 this action be dismissed as time-barred; (2) petitioner’s Motion to Supplement the 24 Petition (“Motion”), filed on August 26, 2019, which attempts to raise an 25 additional claim for relief; (3) respondent’s Response to the Motion and supporting 26 documents (“Lodged Doc.”) filed on September 11, 2019; and 27 (4) petitioner’s “opposition” to the Report and Recommendation (“Objections”), 28 filed on September 23, 2019. 1 The Court has made a de novo determination of those portions of the Report 2 and Recommendation to which objection is made. The Court concurs with and 3 accepts the findings, conclusions, and recommendations of the United States 4 Magistrate Judge, and overrules the Objections. The Court also finds that the new 5 claim petitioner is attempting to add via the Motion is also time-barred, and 6 therefore denies the Motion. 7 II. DISCUSSION 8 A. Petitioner’s Objections to the Report and Recommendation Are 9 Overruled 10 Petitioner’s Objections challenge the Report and Recommendation in 11 multiple respects. The Court has considered and overruled all of petitioner’s 12 Objections, and discusses the principal objections herein. 13 First, petitioner asserts that he is entitled to a later commencement date of 14 the statute of limitations under 28 U.S.C. § 2244(d)(1)(B) because of the “illegal 15 state action” by prison officials who allegedly placed petitioner in unwarranted 16 segregation for nearly two years and otherwise harassed petitioner, as reportedly 17 raised in his pending civil rights case in the Eastern District of California (Price v. 18 Barnes et al., E.D. Cal. Case No. 17-772-MCE(EFB)). See Objections at 21, 26- 19 27, 29. Petitioner’s prison conditions would entitle him to a later commencement 20 date under Section 2244(d)(1)(B) “only if [the conditions] altogether prevented 21 him from presenting his claims in any form, to any court.” See Ramirez v. Yates, 22 571 F.3d 993, 1000-01 (9th Cir. 2009) (emphasis original; citing Lewis v. Casey, 23 518 U.S. 343, 346 (1996)). As is clear on the record, petitioner was able to file 24 numerous cases with the state courts while he was in segregation and after. 25 See R&R at 4-8, 17 (summarizing petitioner’s filings). Petitioner is not entitled to 26 a later commencement date under 28 U.S.C. § 2244(d)(1)(B). For the reasons 27 stated in the Report and Recommendation, an August 2, 2016 commencement date 28 for the statute of limitations is appropriate. See R&R at 11-12. 2 1 Second, petitioner asserts that he is entitled to statutory tolling because the 2 Superior Court allegedly erred in finding untimely his First State Petition (Lodged 3 Docs. 10-11), and his habeas petition challenging the 2008 Conviction (Other 4 Federal Action Docket Nos. 23-1, 23-2, 21-27), which petitioner constructively 5 filed on October 18, 2016.1 Petitioner alleges that these petitions were not 6 untimely because petitioner had no opportunity to discover the claims raised 7 therein until he received his legal file from counsel on August 1, 2016. 8 See Objections at 19-22 (noting that he explained his delay in subsequent petitions 9 to the California Court of Appeal and California Supreme Court). Petitioner also 10 argues that the state courts have not yet clarified what is a substantial delay or 11 applied a consistent rule for petitioner “to be in any sort of compliance.” 12 See Objections at 21 (citing, inter alia, Bennett v. Mueller, 322 F.3d 573 (9th Cir. 13 2002) (discussing California’s timeliness rules in context of determining whether 14 habeas petition is procedurally defaulted), cert. denied, 540 U.S. 938 (2003), and 15 King v. LaMarque, 464 F.3d 963 (9th Cir. 2006) (same)). 16 Petitioner essentially is asking this Court to revisit the Superior Court’s 17 imposition of a procedural bar and find that his state court petitions were “properly 18 filed” to entitle him to statutory tolling. However, the Superior Court’s 19 determination that the state habeas petitions were untimely is “‘the end of the 20 matter’ for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 21 (2005) (citation omitted); see also White v. Martel, 601 F.3d 882, 884 (9th Cir.) 22 (“[T]he adequacy analysis used to decide procedural default issues is inapplicable 23 to the issue of whether a state petition was ‘properly filed’ for purposes of section 24 2244(d)(2). White’s reliance on procedural bar case law is misplaced. White is 25 not entitled to statutory tolling of the AEDPA statute of limitations.”) (internal 26 citations omitted), cert. denied, 562 U.S. 896 (2010). 27 28 1This Order adopts the shorthand terms utilized in the Report and Recommendation, including those for the “First State Petition,” “2008 Conviction” and “Other Federal Action.” 3 1 Third, petitioner asserts that he is entitled to equitable tolling because he was 2 unaware that he needed to explain/contest the timeliness of his state habeas 3 petitions with the Superior Court and because he is otherwise ignorant of the law. 4 See Objections at 22-25, 28. As explained in the Report and Recommendation at 5 18 n.11, “a pro se prisoner’s confusion or ignorance of the law is not, itself, a 6 circumstance warranting equitable tolling.” Waldron-Ramsey v. Pacholke, 556 7 F.3d 1008, 1013 n.4 (9th Cir.) (citation omitted), cert. denied, 558 U.S. 897 (2009). 8 To combat this conclusion, petitioner also alleges that during the relevant time 9 period: (1) he was prescribed psychotropic medications; (2) he was not allowed 10 out of segregation for six to seven months at a time; (3) from summer to winter of 11 2016 he suffered several nervous breakdowns and two suicide attempts for which 12 he was placed in close watch observation; (4) he was assaulted and placed back in 13 segregation on November 3, 2017 for transfer to another prison; but (5) he also was 14 studying the habeas process and how to federalize his claims. See Objections at 15 24-28.2 16 Notwithstanding these allegations, from August 2, 2016 through January 2, 17 2017, petitioner was able to file the Accusation, First State Petition, Second State 18 Petition, and habeas petitions with the Superior Court and California Court of 19 20 2Respondent lodged under seal petitioner’s mental health records from October of 2017 21 through June of 2018. See Docket No. 16. A treatment note dated November 7, 2017, states that petitioner reported a history of four suicide attempts with the most recent attempt the year before 22 when petitioner was housed in Arizona. (Docket No. 16 at 17; but see id. at 56 (February 8, 23 2018 treatment note reporting in more detail that the most recent suicide attempt was in 2015 when petitioner was sent to Arizona and placed in segregation)). The Court does not have 24 mental health records from when petitioner was housed in Arizona. As of May 1, 2018 and June 21, 2018, petitioner reportedly was spending a lot of time working on his court case. (Id. at 31- 25 32). Plaintiff reportedly believed that he had PTSD from being housed long term in segregation, 26 and asked if his social worker would inform his building’s corrections officer that he is “not standoffish and just need [sic] to work on his court paper work.” (Id. at 31). A treatment note 27 dated May 30, 2018, reported that petitioner had been on a combination of three different 28 psychotropic medications for two years and was stable on the medications with no reported side effects. (Id. at 39). 4 1 Appeal challenging his 2008 Conviction. See R&R at 4-6 & 6 n.7. From 2 January 3, 2017 through August 1, 2017, petitioner was able to file the Third State 3 Petition, Fourth State Petition, the habeas petition with the California Supreme 4 Court challenging his 2008 Conviction, the civil rights complaint in Price v. 5 Barnes, et al., and he mailed eight separate pieces of legal correspondence. (Id. at 6 5-6, 6 n.7, 18-19). For the reasons stated in the Report and Recommendation, 7 accepting petitioner’s allegations as true, he has not shown that his mental 8 condition together with his ignorance of the law made it impossible under the 9 totality of the circumstances to meet his filing deadline. (Id. at 19). 10 Finally, petitioner alleges that he is actually innocent, and that an evidentiary 11 hearing would show the following: 12 1. Two weeks prior to petitioner’s arrest, he had a conversation with 13 Ebonee Green and a girlfriend who invited him to a “hotel party.” 14 Petitioner told Green that he could not go because he recently 15 purchased a “fixer upper” car and it “ate up his accessible finances.” 16 Green and her friend joked in disbelief that petitioner could turn down 17 a tryst because he had just gotten out of jail. Petitioner spoke with 18 Green about HIV and aids, telling her that his sister who raised him 19 (and who passed away days before his trial started) had HIV. 20 Petitioner also told Green about his history of celibacy as a religious 21 sacrifice around his prior prison and jail terms. 22 2. Approximately one month prior to his September 14, 2013 release 23 from jail on other charges, petitioner and Davis allegedly had a 24 recorded telephone conversation (not produced in discovery or at 25 trial), wherein Davis offered to give the car to petitioner. Petitioner 26 declined the offer and purchased the car instead. 27 3. Christopher Hogan, Davis’s uncle, and a “Mexican windshield 28 repairman” who were present at the time petitioner purchased the car 5 1 could testify about a Bill of Sale being drawn up and signed by 2 petitioner and Davis. 3 4. Hogan advised petitioner how to get the car “road ready,” and 4 witnessed petitioner withdraw $600 from an ATM and pay $200 to 5 $300 for parts for the car, and the rest to the windshield repairman and 6 Davis after signing the Bill of Sale. 7 See Objections at 1-5, 7-10, 29-30. Petitioner argues that if the jury had heard 8 testimony from Green (who did not testify at petitioner’s trial) about Green’s 9 understanding that petitioner had purchased the car – which was known to Green 10 and reported to the police prior to petitioner being charged with carjacking – and 11 from Hogan, Davis’s uncle, and the windshield repairman about the purchase of 12 the car, the jury would have acquitted petitioner of carjacking. (Objections at 3, 5, 13 8-9). Petitioner also argues that if the jury had heard testimony about petitioner’s 14 character for celibacy, it would have questioned why petitioner was charged with 15 attempted kidnapping to rape Jane Doe #1 (of which the jury did not find petitioner 16 guilty), and found petitioner not guilty of the lesser included charge of attempted 17 kidnaping of Jane Doe #1. (Objections at 5-6). 18 Petitioner’s new “evidence” and argument is unpersuasive. Petitioner 19 testified at trial that he was buying the car from Davis and still owed her some 20 money for the car at the time of the alleged carjacking. (RT 1880-81, 2144-45). 21 Petitioner admitted that Davis got angry with him and told him he still owed her 22 money. (RT 1888-90). Christopher Hogan was present to testify for the defense, 23 but defense counsel informed the trial court that for tactical reasons Hogan would 24 not be called as a defense witness after listening to undisclosed recorded 25 conversations and talking with the prosecution. (RT 1871, 2161). 26 Petitioner has not alleged a credible claim of actual innocence to entitle him 27 to have his untimely claims heard on the merits. Considering all of the evidence 28 and petitioner’s allegations, petitioner has not persuaded the Court that “in light of 6 1 the new evidence, no juror, acting reasonably, would have voted to find him guilty 2 beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). 3 For all the foregoing reasons, petitioner has shown no basis upon which to 4 find his claims timely or to reach the merits of his untimely claims. 5 B. Petitioner’s Motion Is Denied Because the New Actual Innocence 6 Claim Contained Therein Is Also Time-Barred 7 In his Motion, petitioner raises a single claim of actual innocence, arguing 8 that there was no evidence or allegations of violence underlying his 2014 9 carjacking conviction, which he alleges was a “non-event.” See Motion at 5, 5b2- 10 5b3. Petitioner cites by inference to Solorio-Ruiz v. Sessions, 881 F.3d 733, 736 11 (9th Cir. 2018) (holding that a carjacking conviction under California law is not a 12 “crime of violence” under federal law in light of Johnson v. United States, 559 13 U.S. 133, 140 (2010), overruling Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 14 (9th Cir. 2010)). Like his other claims, petitioner’s “new” actual innocence claim 15 is untimely. 16 Petitioner’s conviction became final on April 19, 2016. See R&R at 9. 17 Pursuant to 28 U.S.C. § 2244(d)(1)(D), the Court has given petitioner a later statute 18 of limitations commencement date for the discovery of his claims of August 2, 19 2016. See R&R at 11-12. If petitioner is attempting to assert a later date under 20 Section 2244(d)(1)(D) based on the issuance of the Solorio-Ruiz decision, he is not 21 entitled to a delay. Petitioner knew of the factual basis for his new claim (i.e., that 22 his 2008 and 2014 carjacking convictions allegedly were not based on evidence or 23 allegations of violence), as opposed to the legal basis for his new claim (i.e., the 24 Solorio-Ruiz case), prior to the time his conviction became final. See Hasan v. 25 Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). 26 To the extent petitioner may be alleging that his conditions of confinement 27 amount to illegal state action preventing him from bringing his new claim sooner, 28 he is not entitled to a later accrual date under 28 U.S.C. § 2244(d)(1)(B) for the 7 1 same reasons discussed herein that Subsection B does not provide a later accrual 2 for his other claims. Nor is petitioner entitled to a later accrual date under 3 28 U.S.C. § 2244(d)(1)(C), since petitioner’s new claim is not predicated on a 4 constitutional right newly recognized by the Supreme Court, and his citation to the 5 Ninth Circuit Solorio-Ruiz case does not apply. See Thompson v. Sherman, 2019 6 WL 2807871, at *3 (C.D. Cal. May 21, 2019) (rejecting claim that Solorio- 7 Ruiz and Johnson should merit later commencement date since, as here, Johnson 8 predated the conviction and Solorio-Ruiz is not a Supreme Court case), report and 9 recommendation adopted, 2019 WL 2764403 (C.D. Cal. July 2, 2019). 10 Accordingly, the statute of limitations for petitioner’s new claim commenced 11 on August 2, 2016, and, absent tolling, expired on August 1, 2017. For the same 12 reasons petitioner is not entitled to statutory or equitable tolling for his other 13 claims, he is not entitled to statutory or equitable tolling for his new claim. 14 Petitioner had no properly filed state habeas petitions to toll the limitations period, 15 and he has raised no basis for equitable tolling since: (1) as the Superior Court 16 found, Solorio-Ruiz did not effect a change in state law (Lodged Doc. 17); and (2) 17 the change in Ninth Circuit law is not relevant/controlling in petitioner’s case. 18 See Lua v. Foss, 2019 WL 2341655, at *2 (C.D. Cal. May 31, 2019) (explaining 19 that Solorio-Ruiz said nothing about the validity of California’s carjacking offense 20 or the validity of a sentence imposed for such offense, and Johnson concerns 21 federal statutory interpretation not constitutional law); compare Shannon v. 22 Newland, 410 F.3d 1083, 1090 (9th Cir. 2005) (rejecting contention that the time 23 between petitioner’s conviction and state court decision clarifying state law should 24 be equitably tolled), cert. denied, 546 U.S. 1171 (2006). 25 Finally, to the extent petitioner is asserting that the Court should reach the 26 merits of his new claim because he is actually innocent of carjacking, he has 27 presented no new reliable evidence of his purported innocence for the Court’s 28 consideration – he merely challenges the sufficiency of the evidence to support his 8 1 convictions. See Motion at 5. Moreover, contrary to petitioner’s allegation that 2 there were no allegations or evidence at trial that the carjackings were 3 accomplished by violence, there was evidence that both the carjackings in the 2008 4 Case and in the 2014 Case involved taking the cars by force or violence. The 5 victim in the 2008 Case testified at petitioner’s 2014 trial that petitioner hurt her to 6 get car keys from her hand and take her car without permission (i.e., petitioner put 7 his arms around her neck, choked her, and said, “Bitch, give me the keys.”). (RT 8 1587-91). A call from Davis to Detective Sanchez was played for the jury wherein 9 Davis said, contrary to her trial testimony, that petitioner had “grabbed [her] from 10 behind” and “took the keys” to the car. (CT 152-54). Once again, petitioner has 11 not persuaded the Court in light of his argument that “no juror, acting reasonably, 12 would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 13 513 U.S. at 329. For these reasons, the Motion is denied. Granting petitioner leave 14 to bring an additional claim would be futile since all of petitioner’s claims are 15 time-barred. 16 III. ORDERS 17 IT IS HEREBY ORDERED that: (1) petitioner’s Motion is denied; (2) the 18 Petition and this action are dismissed with prejudice because petitioner’s claims are 19 barred by the statute of limitations; and (3) Judgment be entered accordingly. 20 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 21 the Judgment herein on petitioner and counsel for respondent. 22 IT IS SO ORDERED. 23 24 DATED: October 22, 2019 25 /s/ RONALD S.W. LEW 26 ________________________________________ 27 HONORABLE RONALD S.W. LEW UNITED STATES DISTRICT JUDGE 28 9