1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONAS BROWN, Case No. 23-cv-778-BAS-DDL
12 Plaintiff, ORDER: 13 v. (1) OVERRULING Petitioner’s Objections (ECF No. 11); 14 ROBERTO ARIAS, (2) OVERRULING the State’s 15 Defendant. Objections as Moot (ECF No. 12); 16 (3) Adopting the R&R in Part 17 (ECF No. 10); (4) GRANTING the Motion to 18 Dismiss (ECF No. 4); and 19 (5) DENYING Petitioner’s Request for a Certificate of 20 Appealability (ECF No. 11). 21 22 Petitioner commenced this action to overturn his criminal conviction on the grounds 23 it violates the Fifth, Sixth, and Fourteenth Amendments of the Constitution. (ECF No. 1.) 24 The Court referred this matter to the magistrate judge for a Report & Recommendation 25 (“R&R”) in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c)(1). 26 After Respondent filed a Motion to Dismiss (ECF No. 4), U.S. Magistrate Judge David D. 27 Leshner issued an R&R recommending that this Court grant Respondent’s motion. (ECF 28 No. 10.) Parties both filed objections to the R&R. (ECF Nos. 11, 12.) 1 I. BACKGROUND 2 Petitioner was charged with violent gang activity on two separate occasions: 3 shooting in rival gang territory on February 15, 2016 and murdering a fellow gang member 4 believed to be an informant on July 1, 2016. A jury convicted him of murder, premeditated 5 attempted murder, and assault with a semi-automatic firearm. The jury also found true the 6 gang and firearm enhancement allegations. After conviction, Petitioner admitted a 7 previous robbery conviction that qualified as a prison prior, serious felony prior and strike 8 prior. The Court sentenced Petitioner to 130 years in custody. 9 Judgment was entered against Petitioner on January 16, 2019. (ECF No. 5-3 at 154- 10 156.) His direct appeal of that judgment concluded with the California Supreme Court’s 11 denial of his petition for review on October 28, 2020. (ECF No. 5-9.) Neither party takes 12 issue with the conclusion in the R&R that, therefore, the statute of limitations for filing a 13 federal habeas petition expired on March 27, 2022. 14 Petitioner filed his first federal petition for habeas corpus within the statute of 15 limitations on September 1, 2021, in case no. 21-cv-1550-L-WVG (hereinafter, “Case 1”). 16 The Honorable M. James Lorenz dismissed the petition without prejudice, finding 17 Petitioner had failed to exhaust both of his claims in state court. 18 After Petitioner had exhausted his claims with the California Supreme Court, on 19 April 16, 2023, Petitioner filed a First Amended Petition for writ of habeas corpus again in 20 Case 1. (Case 1, ECF No. 12.) On April 28, 2023, Judge Lorenz denied the amended 21 petition, noting the Court had closed the case and Petitioner had not been granted 22 permission to file an amended petition. (Case 1, ECF No. 13.) 23 On April 27, 2023, Petitioner filed the instant petition. (ECF No. 1.) Respondent 24 moved to dismiss the petition arguing first that it is barred by the statute of limitations, 25 second, that Petitioner’s sole claim is procedurally defaulted, and third, that the petition is 26 prohibited by the anti-retroactivity rule. (ECF No. 4.) When Petitioner failed to respond 27 to the Motion, the Court issued an Order to Show Cause why the Petition should not be 28 1 dismissed for failure to oppose the Motion. (ECF No. 6.) Petitioner then filed a Response 2 to the Motion. (ECF No. 7.) 3 On December 30, 2023, Magistrate Judge Leshner issued a R&R recommending the 4 district court grant the Motion to Dismiss on the statute of limitations ground only. (ECF 5 No. 10.) Petitioner timely objected to the R&R. (ECF No. 11.) Respondent responded, 6 agreeing that the R&R was correct on the statute of limitations issue, but objecting to the 7 remainder of the R&R, reiterating its argument that the claim is procedurally defaulted and 8 barred by the anti-retroactivity rule. (ECF No.12.) 9 The Court OVERRULES Petitioner’s Objections and finds the claims are barred by 10 the statute of limitations. (ECF No. 11.) The Court further APPROVES AND ADOPTS 11 the R&R IN PART (ECF No. 10) and GRANTS the Motion to Dismiss (ECF No. 4.) The 12 Court OVERRULES Respondent’s Objections as moot. (ECF No. 12.) 13 II. LEGAL STANDARD 14 The Court reviews de novo those portions of a Magistrate Judge’s R&R to which 15 objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in 16 whole or in part, the findings or recommendations made by the magistrate judge.” Id. “The 17 statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,” however, “that the district judge must 18 review the magistrate judge’s findings and recommendations de novo if objection is made, 19 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 20 banc); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) 21 (concluding that where no objections were filed, the district court had no obligation to 22 review the magistrate judge’s report). “Neither the Constitution nor the statute requires a 23 district judge to review, de novo, findings and recommendations that the parties themselves 24 accept as correct.” Reyna-Tapia, 328 F.3d at 1121. 25 Objections must be written and specific. See, e.g., Fed. R. Civ. P. 72(b)(2) (“[A] 26 party may serve and file specific written objections to the proposed findings and 27 recommendations” of the magistrate judge.) “Numerous courts have held that a general 28 objection to the entirety of a Magistrate Judge’s R&R has the same effect as a failure to 1 object.” Alcantara v. McEwen, No. 12-CV-401-IEG DHB, 2013 WL 4517861, at *1 (S.D. 2 Cal. Aug. 15, 2013). In the absence of specific objection, the clear weight of authority 3 indicates that the court need only satisfy itself that there is no “clear error” on the face of 4 the record before adopting the magistrate judge’s recommendation. See, e.g., Fed. R. Civ. 5 P. 72(b) Advisory Comm. Notes (1983) (citing Campbell v. U.S. Dist. Ct. for N. Dist. of 6 California, 501 F.2d 196, 206 (9th Cir. 1974)). 7 III. ANALYSIS 8 Petitioner objects to the R&R on three grounds: (1) the instant habeas petition should 9 “relate back” to the dismissed petition in Case 1 because the Ninth Circuit opinion in 10 Rasberry v. Garcia, 448 F.3d 1150 (9th Cir. 2006), is “trumped” by the Supreme Court 11 decision in Mayle v. Felix, 545 U.S. 644 (2005); (2) the district court must provide habeas 12 litigants the opportunity to amend per Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000); 13 and (3) if dismissed, a certificate of appealability must issue because reasonable jurists 14 could disagree on the ruling. The Court addresses each objection in turn below. 15 A. Mayle Trumps Rasberry 16 In essence, Petitioner argues, as he did before the Magistrate Judge, that Rasberry, 17 decided in 2006, was simply wrongly decided, because it ignores the Supreme Court’s 18 2005 decision in Mayle.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONAS BROWN, Case No. 23-cv-778-BAS-DDL
12 Plaintiff, ORDER: 13 v. (1) OVERRULING Petitioner’s Objections (ECF No. 11); 14 ROBERTO ARIAS, (2) OVERRULING the State’s 15 Defendant. Objections as Moot (ECF No. 12); 16 (3) Adopting the R&R in Part 17 (ECF No. 10); (4) GRANTING the Motion to 18 Dismiss (ECF No. 4); and 19 (5) DENYING Petitioner’s Request for a Certificate of 20 Appealability (ECF No. 11). 21 22 Petitioner commenced this action to overturn his criminal conviction on the grounds 23 it violates the Fifth, Sixth, and Fourteenth Amendments of the Constitution. (ECF No. 1.) 24 The Court referred this matter to the magistrate judge for a Report & Recommendation 25 (“R&R”) in accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c)(1). 26 After Respondent filed a Motion to Dismiss (ECF No. 4), U.S. Magistrate Judge David D. 27 Leshner issued an R&R recommending that this Court grant Respondent’s motion. (ECF 28 No. 10.) Parties both filed objections to the R&R. (ECF Nos. 11, 12.) 1 I. BACKGROUND 2 Petitioner was charged with violent gang activity on two separate occasions: 3 shooting in rival gang territory on February 15, 2016 and murdering a fellow gang member 4 believed to be an informant on July 1, 2016. A jury convicted him of murder, premeditated 5 attempted murder, and assault with a semi-automatic firearm. The jury also found true the 6 gang and firearm enhancement allegations. After conviction, Petitioner admitted a 7 previous robbery conviction that qualified as a prison prior, serious felony prior and strike 8 prior. The Court sentenced Petitioner to 130 years in custody. 9 Judgment was entered against Petitioner on January 16, 2019. (ECF No. 5-3 at 154- 10 156.) His direct appeal of that judgment concluded with the California Supreme Court’s 11 denial of his petition for review on October 28, 2020. (ECF No. 5-9.) Neither party takes 12 issue with the conclusion in the R&R that, therefore, the statute of limitations for filing a 13 federal habeas petition expired on March 27, 2022. 14 Petitioner filed his first federal petition for habeas corpus within the statute of 15 limitations on September 1, 2021, in case no. 21-cv-1550-L-WVG (hereinafter, “Case 1”). 16 The Honorable M. James Lorenz dismissed the petition without prejudice, finding 17 Petitioner had failed to exhaust both of his claims in state court. 18 After Petitioner had exhausted his claims with the California Supreme Court, on 19 April 16, 2023, Petitioner filed a First Amended Petition for writ of habeas corpus again in 20 Case 1. (Case 1, ECF No. 12.) On April 28, 2023, Judge Lorenz denied the amended 21 petition, noting the Court had closed the case and Petitioner had not been granted 22 permission to file an amended petition. (Case 1, ECF No. 13.) 23 On April 27, 2023, Petitioner filed the instant petition. (ECF No. 1.) Respondent 24 moved to dismiss the petition arguing first that it is barred by the statute of limitations, 25 second, that Petitioner’s sole claim is procedurally defaulted, and third, that the petition is 26 prohibited by the anti-retroactivity rule. (ECF No. 4.) When Petitioner failed to respond 27 to the Motion, the Court issued an Order to Show Cause why the Petition should not be 28 1 dismissed for failure to oppose the Motion. (ECF No. 6.) Petitioner then filed a Response 2 to the Motion. (ECF No. 7.) 3 On December 30, 2023, Magistrate Judge Leshner issued a R&R recommending the 4 district court grant the Motion to Dismiss on the statute of limitations ground only. (ECF 5 No. 10.) Petitioner timely objected to the R&R. (ECF No. 11.) Respondent responded, 6 agreeing that the R&R was correct on the statute of limitations issue, but objecting to the 7 remainder of the R&R, reiterating its argument that the claim is procedurally defaulted and 8 barred by the anti-retroactivity rule. (ECF No.12.) 9 The Court OVERRULES Petitioner’s Objections and finds the claims are barred by 10 the statute of limitations. (ECF No. 11.) The Court further APPROVES AND ADOPTS 11 the R&R IN PART (ECF No. 10) and GRANTS the Motion to Dismiss (ECF No. 4.) The 12 Court OVERRULES Respondent’s Objections as moot. (ECF No. 12.) 13 II. LEGAL STANDARD 14 The Court reviews de novo those portions of a Magistrate Judge’s R&R to which 15 objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in 16 whole or in part, the findings or recommendations made by the magistrate judge.” Id. “The 17 statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,” however, “that the district judge must 18 review the magistrate judge’s findings and recommendations de novo if objection is made, 19 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 20 banc); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) 21 (concluding that where no objections were filed, the district court had no obligation to 22 review the magistrate judge’s report). “Neither the Constitution nor the statute requires a 23 district judge to review, de novo, findings and recommendations that the parties themselves 24 accept as correct.” Reyna-Tapia, 328 F.3d at 1121. 25 Objections must be written and specific. See, e.g., Fed. R. Civ. P. 72(b)(2) (“[A] 26 party may serve and file specific written objections to the proposed findings and 27 recommendations” of the magistrate judge.) “Numerous courts have held that a general 28 objection to the entirety of a Magistrate Judge’s R&R has the same effect as a failure to 1 object.” Alcantara v. McEwen, No. 12-CV-401-IEG DHB, 2013 WL 4517861, at *1 (S.D. 2 Cal. Aug. 15, 2013). In the absence of specific objection, the clear weight of authority 3 indicates that the court need only satisfy itself that there is no “clear error” on the face of 4 the record before adopting the magistrate judge’s recommendation. See, e.g., Fed. R. Civ. 5 P. 72(b) Advisory Comm. Notes (1983) (citing Campbell v. U.S. Dist. Ct. for N. Dist. of 6 California, 501 F.2d 196, 206 (9th Cir. 1974)). 7 III. ANALYSIS 8 Petitioner objects to the R&R on three grounds: (1) the instant habeas petition should 9 “relate back” to the dismissed petition in Case 1 because the Ninth Circuit opinion in 10 Rasberry v. Garcia, 448 F.3d 1150 (9th Cir. 2006), is “trumped” by the Supreme Court 11 decision in Mayle v. Felix, 545 U.S. 644 (2005); (2) the district court must provide habeas 12 litigants the opportunity to amend per Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000); 13 and (3) if dismissed, a certificate of appealability must issue because reasonable jurists 14 could disagree on the ruling. The Court addresses each objection in turn below. 15 A. Mayle Trumps Rasberry 16 In essence, Petitioner argues, as he did before the Magistrate Judge, that Rasberry, 17 decided in 2006, was simply wrongly decided, because it ignores the Supreme Court’s 18 2005 decision in Mayle. 19 In Rasberry, just like this case, the court dismissed the first habeas petition for failure 20 to exhaust administrative remedies. After exhaustion, the petitioner returned and filed a 21 “First Amended Petition,” which the Clerk of Court construed as a new habeas petition. 22 The petitioner argued that the First Amended Petition related back to the timely filed first 23 petition pursuant to the Federal Rules of Civil Procedure 15(c). The court ruled “that a 24 habeas petition filed after the district court dismisses a previous petition without prejudice 25 for failure to exhaust state remedies cannot relate back to the original habeas petition.” Id. 26 at 1154. 27 The ruling in Rasberry is squarely on point with this case. Petitioner does not argue 28 otherwise. Instead, he claims that an earlier-decided Supreme Court case, Mayle v. Felix, 1 “trumps” the Rasberry case. In other words, somehow the Court in Rasberry missed the 2 Mayle decision and thus Rasberry was wrongly decided. 3 Mayle, however, did not involve a dismissed petition such as the one in this case and 4 in Rasberry. Mayle involved a still-pending habeas petition and an amendment filed after 5 the statute of limitations had expired, adding a new claim for relief. In that context, the 6 Supreme Court ruled that the amended petition does relate back to the date of the original 7 pleading when the amended pleading arose out of the same conduct, transaction, or 8 occurrence as that in the original pleading. However, Mayle says nothing about relation 9 back when the first petition has been dismissed and is no longer pending before the Court. 10 Thus, the Court agrees with the R&R that “nothing in Mayle suggests that Rule 15’s 11 relation back provisions apply in these circumstances—indeed, the Rasberry court 12 specifically rejected that interpretation of Mayle.” Petitioner’s objection on this ground is 13 overruled. 14 B. Anthony Requires the District Judge to Allow Petitioner to Amend 15 Petitioner argues that Judge Lorenz’s dismissal of the First Amended Petition in 16 April 2023 was error. According to Petitioner, if Judge Lorenz had allowed an amended 17 petition in Case 1, then it could have been related back to the original petition as was done 18 in Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000). 19 In Anthony v. Cambra, the court dismissed a timely filed habeas petition containing 20 both exhausted and unexhausted claims. The court erroneously failed to give the petitioner 21 the opportunity to amend or resubmit the petition with only the exhausted claims. See Rose 22 v. Lundy, 455 U.S. 509 (1982) (holding that district courts faced with a petition containing 23 both exhausted and unexhausted claims should give the petitioner an opportunity to delete 24 the unexhausted claims as an alternative to suffering dismissal). When the petitioner later 25 refiled a single exhausted claim and requested stay pending exhaustion of the others, the 26 court granted the motion. The Court of Appeals concluded outright dismissal of the first 27 petition was improper since district courts must provide habeas litigants the opportunity to 28 amend their mixed petitions by striking unexhausted claims, and, since the initial dismissal 1 was improper, the district court properly exercised its equitable powers by allowing the 2 amended petition to relate back. As explained in Rasberry, Anthony v. Cambra “does not 3 stand for the proposition that a second habeas petition can relate back to a previously 4 dismissed first petition, but merely endorsed the district court’s exercise of its equitable 5 power to correct a mistake. Anthony does not extend beyond that context.” Rasberry, 448 6 F.3d at 1154. 7 In this case, Judge Lorenz found that all of Petitioner’s claims were unexhausted. 8 Thus, unlike Anthony, there was no rule mandating he allow Petitioner to proceed with any 9 exhausted claims. 10 Nor do district judges have the obligation to warn petitioners that their federal claims 11 might be time-barred without a stay. Pliler v. Ford, 542 U.S. 225, 231 (2004). There is a 12 procedure whereby a petitioner can stay and abey a habeas petition. Rhines v. Weber, 544 13 U.S. 269 (2005); see also Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (the procedure 14 outlined in Rhines is not limited to mixed petitions and the district court may stay a petition 15 that raises only exhausted claims). However, the Ninth Circuit has held, when a petitioner 16 never requested a stay, and, thus, the district court never denied one, Rhines “cannot be 17 read to convert the district judge’s dismissal . . . into a stay and abeyance.” Libberton v. 18 Ryan, 583 F.3d 1147, 1162 (9th Cir. 2009). 19 In this case, like the petitioner in Libberton, Petitioner never asked for a stay. Thus, 20 the district court never ruled on a motion for a stay and abeyance under Rhines. When 21 Petitioner later attempted to file an amended petition, and Judge Lorenz dismissed the 22 petition, again, Petitioner never argued that the original case should have been stayed or 23 that the equitable powers exercised in Anthony should have been applied. Thus, the court 24 never evaluated whether this case was appropriate for a Rhines stay and abeyance. Nor did 25 Petitioner appeal from the district court’s dismissal of the petition in April 2023. Instead, 26 he filed this new petition. 27 28 1 Nothing in Anthony requires the court to grant a stay when it was not done or 2 requested in the previous case. Rasberry makes clear that nothing in Anthony requires this 3 Court to relate back this petition to a petition dismissed in another case. 4 C. Certificate of Appealability Must Issue 5 A district court should issue a certificate of appealability when the petitioner 6 demonstrates “that jurists of reason could disagree with the district court’s resolution of his 7 constitutional claims or that jurists could conclude the issues presented are adequate to 8 deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 9 (2003). Petitioner argues this is such a case. 10 The Ninth Circuit has clearly ruled “a habeas petition filed after the district court 11 dismisses a previous petition without prejudice for failure to exhaust state remedies cannot 12 relate back to the original habeas petition.” Rasberry, 448 F.3d at 1155 No request was 13 ever made to the first court to exercise its equitable powers by allowing the amended 14 petition to relate back, thus Anthony v. Cambra is inapplicable. Given the clear state of the 15 law, there are no grounds for a certificate of appealability to issue. 16 IV. CONCLUSION 17 For the reasons stated above, this Court OVERRULES Petitioner’s objections. 18 (ECF No. 11.) Although the State also objects to the R&R to the extent it rejects arguments 19 that the claims have been procedurally defaulted and that the claims implicate the anti- 20 retroactivity rule espoused in Teague v. Lane, 489 U.S. 288 (1989), the Court need not 21 reach those objections since it finds the claims are time-barred and should be dismissed on 22 that basis. Thus, the Court OVERRULES the Respondent’s objections as moot. (ECF 23 No. 12). The Court APPROVES AND ADOPTS the R&R IN PART only with respect 24 to its ruling that the claims are time-barred, and declines to adopt the parts of the R&R 25 dealing with procedural default and anti-retroactivity. (ECF No. 12.) The Court dismisses 26 \\ 27 \\ 28 | Petition as time-barred and directs the Clerk to close the case. The Court DENIES 2 || Petitioner’s request for a certificate of appealability. (ECF No. 11.) 3 IT IS SO ORDERED. 4 A 5 || DATED: January 16, 2024 Ypilag (Lyohaa é 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28