DeBose v. Madden

• Court: District Court, S.D. California
• Decided: February 23, 2021
• Docket: 3:20-cv-01132
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LOUIS LOVELL DEBOSE, Case No. 20-cv-1132-MMA (WVG)

12 Petitioner, ORDER OVERRULING 13 v. PETITIONER’S OBJECTIONS; ADOPTING REPORT AND 14 RAYMOND MADDEN, Warden, RECOMMENDATION; GRANTING 15 Respondent. RESPONDENT’S MOTION TO DISMISS; AND DENYING 16 PETITIONER’S REQUEST FOR 17 CERTIFICATE OF APPEALABILITY 18

19 [Doc. Nos. 6, 10, 11] 20 21 Louis Lovell DeBose (“Petitioner”), a state prisoner proceeding pro se, filed a 22 habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge a prison administrative 23 rules violation hearing, which resulted in the loss of a 90-day time credit. See Doc. No. 1 24 at 1, 13.1 Respondent filed a motion to dismiss the Petition. See Doc. No. 6. The 25 Magistrate Judge has issued a detailed and well-reasoned Report and Recommendation 26 27 28 1 (“R&R”), recommending that the Court grant Respondent’s motion and dismiss the 2 Petition without leave to amend. See Doc. No. 10 at 11. Petitioner filed a timely 3 objection to the R&R. See Doc. No. 11. Respondent has not filed a reply. Upon due 4 consideration and for the reasons set forth below, the Court OVERRULES Petitioner’s 5 objections, ADOPTS the Magistrate Judge’s R&R, GRANTS Respondent’s motion to 6 dismiss and DISMISSES the Petition without leave to amend, and DENIES Petitioner’s 7 request for a certificate of appealability. 8 I. BACKGROUND 9 In August 2017, Petitioner was issued a rules violation report (“RVR”) for using 10 cardboard to obstruct the view into his cell, thus delaying prison staff’s ability to conduct 11 the inmate count. See Doc. No. 1 at 1; Doc. No. 6-5 at 36 45, 53, 55. As a result, 12 Petitioner was found guilty of “Delaying a Peace Officer in the performance of Duties” 13 and sanctioned a good-time credit loss of ninety days. See Doc. No. 1 at 13; Doc. No. 6- 14 5 at 36. Petitioner asserts that the RVR hearing violated his constitutional rights because 15 he was denied a requested witness, the ability to present documentary evidence, and an 16 impartial decisionmaker. See Doc. No. 1 at 3, 13. 17 The Magistrate Judge issued an R&R on Respondent’s motion to dismiss, in which 18 he recommends the Court grant Respondent’s motion and dismiss the Petition without 19 leave to amend. See Doc. No. 10 at 11. The Magistrate Judge found that the Court lacks 20 federal habeas corpus jurisdiction because Petitioner’s success “would not necessarily 21 lead to Petitioner’s immediate or speedier release,” which renders his claim outside the 22 core of habeas corpus. See id. at 3, 6. Although his Petition could be construed as a 23 § 1983 action, the Magistrate Judge found that the Court should not construe the action 24 because there are no allegations against the named Respondent, and it is unclear who 25 Petitioner seeks to hold responsible for the denial of his rights. See id. at 6. Additionally, 26 the Magistrate Judge found that such a § 1983 action should be filed in the Central 27 District of California because the state actors mentioned in the Petition do not appear to 28 reside in this district and the events of the underlying disciplinary action occurred in the 1 Central District. See id. at 7. Regardless of these issues, the Magistrate Judge further 2 found that the Petition is facially untimely, cannot be saved by statutory tolling, is not 3 entitled to equitable tolling, and does not demonstrate a miscarriage of justice. See id. at 4 8–11. 5 Petitioner now objects to the Magistrate Judge’s R&R. See Doc. No. 11. 6 II. LEGAL STANDARD 7 The duties of the district court in connection with a magistrate judge’s report and 8 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 9 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “[a] judge of the [district] 10 court shall make a de novo determination of those portions of the [R&R] to which 11 objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149–50 12 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). A district 13 judge may “accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 15 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989) (quoting 28 U.S.C. § 636(b)); 16 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). 17 III. DISCUSSION 18 Petitioner objects to five components of the Magistrate Judge’s R&R. See Doc. 19 No. 11. The Court addresses each objection in turn. 20 First, Petitioner takes issue with the background section of the R&R because it 21 “renders an erred and abridged version” and makes “a fair judgment impossible.” See id. 22 at 2. The Court finds that Petitioner’s various objections to the background section are 23 insufficient to show that the Magistrate Judge came to an incorrect conclusion regarding 24 the substance of Respondent’s motion to dismiss. Indeed, the objection does not show 25 how the Magistrate Judge was incorrect in finding that the Court lacks federal habeas 26 corpus jurisdiction over this action or that the Petition is untimely. Thus, the Court 27 OVERRULES Petitioner’s first objection. 28 1 Second, Petitioner argues that the legal standard used in the R&R is “misguided 2 and erroneous.” Doc. No. 11 at 4. Similar to the background section objection, 3 Petitioner fails to demonstrate how the legal standard section rendered an erroneous 4 recommendation regarding the Court’s lack of jurisdiction over this action or the 5 untimeliness of the Petition. Thus, the Court OVERRULES Petitioner’s second 6 objection. 7 Third, Petitioner asserts that the Magistrate Judge was incorrect in finding “federal 8 habeas jurisdiction does not attack the legality of the duration of Petitioner’s confinement 9 and must be brought in a separate civil rights action.” Doc. No. 11 at 7. Similar to the 10 rationale in Nettles v. Grounds, success on the merits of Petitioner’s claims “would not 11 necessarily lead to immediate or speedier release because the expungement of the 12 challenged disciplinary violation would not necessarily lead to a grant of parole.” 830 13 F.3d 922, 934–35 (9th Cir. 2016) (en banc) (finding that the petition did not fall within 14 the “core of habeas corpus” where it sought to expunge a RVR and the loss of “thirty 15 days of postconviction credits” that resulted from the disciplinary hearing). The 16 Magistrate Judge was correct. The disciplinary hearing could affect the Parole Board’s 17 future assessment on whether to grant parole, where the lost credits could affect the 18 calculation of Petitioner’s ultimate release date. However, the expungement of the 19 disciplinary findings would not necessarily lead to an immediate or speedier release. As 20 the Ninth Circuit in Nettles noted, “the presence of a disciplinary infraction does not 21 compel the denial of parole, nor does an absence of an infraction compel the grant of 22 parole.” Id. at 935. The Parole Board may deny parole “on the basis of any of the 23 grounds presently available to it.” Id. (quoting Ramirez v. Galaza, 334 F.3d 850, 859 24 (9th Cir. 2003)). As the Magistrate Judge noted, Petitioner may never be found eligible 25 for parole based on other grounds. Petitioner’s claims remain speculative and too 26 attenuated and, thus, fall outside of “the core of habeas corpus” because they would 27 “would not necessarily lead to his immediate or earlier release from confinement and he 28 must instead bring his claim under § 1983.” Id. (quoting Skinner v. Switzer, 562 U.S. 1 521, 535 n.13 (2011)). Thus, the Court OVERRULES Petitioner’s third objection. 2 Because Petitioner’s claim falls outside “the core of habeas corpus,” this alone is 3 sufficient to dismiss his claim. However, the Court proceeds to discuss Petitioner’s 4 objections to the Magistrate Judge’s timeliness findings. 5 Fourth, Petitioner contends that the Magistrate Judge erred in finding statutory 6 tolling principles would make the Petition untimely. See Doc. No. 11 at 11. In 7 particular, Petitioner argues “interval tolling” makes his Petition timely. See id. (citing 8 Evans v. Chavis, 546 U.S. 189, 193–94 (2006)). 9

10 2 Petitioner does not challenge the Magistrate Judge’s finding that the Petition should not be construed 11 as a § 1983 action or that venue for such an action is improper in the Southern District of California. See Doc. No. 10 at 6–7. Even if Petitioner did challenge this finding, the Court finds that the Magistrate 12 Judge is correct. The Petition lacks the requisite supporting information that would make it amendable 13 to conversion. See Nettles, 830 F.3d at 936; see also Doc. No. 10 at 6.

14 Additionally, venue in this district is improper under an action brought pursuant to § 2254 or § 1983. “The proper venue for a § 2254 habeas petition is (a) the district where the petitioner is 15 presently confined, or (b) the district where he was convicted.” Braveboy v. James, No. 2:20-cv-10609- JGB-KES, 2020 WL 7342756, at *2 (C.D. Cal. Dec. 14, 2020). Proper venue for a § 1983 action lies in 16

17 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of 18 the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action 19 may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. 20

21 28 U.S.C. § 1391(b). Recently, Petitioner was transferred to Salinas Valley State Prison, see Doc. No. 12, which is in Monetary County and sits in the Northern District of California. Petitioner was 22 convicted in Los Angeles Superior Court, which is in the Central District of California. As the Magistrate Judge noted, “there is no indication that any State actors mentioned in the Petition reside in 23 this District, and the entirety of events of the underlying disciplinary action transpired at Ironwood State Prison, which is located in Blythe, California within Riverside County and thus covered by the Central 24 District of California.” Doc. No. 10 at 7. Based on the facts before the Court, venue in the Southern 25 District of California is improper. Accordingly, improper venue alone is sufficient to dismiss the Petition. See 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying venue 26 in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”); see also Miller v. Hambrick, 905 F.2d 27 259, 262 (9th Cir. 1990) (citing 28 U.S.C. § 1631). Given the other critical defects in the Petition—as noted in the Magistrate Judge’s R&R and this Order—the Court finds dismissal appropriate and declines 28 1 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 2 established a one-year statute of limitations period for a petition for a writ of habeas 3 corpus. See 28 U.S.C. § 2244(d)(1). This limitations period applies to § 2254 habeas 4 petitions that challenge prison disciplinary decisions. See Shelby v. Bartlett, 391 F.3d 5 1061, 1063 (9th Cir. 2004). Under such challenges, the limitations period runs pursuant 6 to § 2244(d)(1)(D). See Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012); Shelby, 7 391 F.3d at 1066. Under § 2244(d)(1)(D), “[t]he limitation period shall run from the 8 latest of . . . (D) the date on which the factual predicate of the claim or claims presented 9 could have been discovered through the exercise of due diligence.” 28 U.S.C. 10 § 2244(d)(1)(D). “As a general rule, the state agency’s denial of an administrative appeal 11 is the ‘factual predicate’ for such habeas claims.” Mardesich, 668 F.3d at 1172. The 12 limitations period is tolled when “a properly filed application for State post-conviction or 13 other collateral review with respect to the pertinent judgment or claim is pending.” 28 14 U.S.C. § 2244(d)(2). 15 Here, the California Department of Corrections and Rehabilitation (“CDCR”) 16 issued its third level appeal decision regarding the RVR on February 15, 2018. See Doc. 17 No. 6-5 at 57. Petitioner filed the initial state court petition in Riverside County Superior 18 Court on January 23, 2019. See Doc. No. 6-5 at 70. Between the final CDCR appeal and 19 the filing of the petition in Riverside County Superior Court, 342 days passed and left 23 20 days remining in the limitations period. The limitations period was subject to statutory 21 tolling until the California Supreme Court denied his petition on March 11, 2020. See 22 Doc. No. 6-11 at 2. Petitioner constructively filed the instant Petition on June 10, 2020, 23 which was 91 days after the California Supreme Court’s denial. See Doc. No. 1 at 12. 24 Taking the two time periods when the statute of limitations was running, 433 days 25 passed.3 Therefore, after applying statutory tolling, the one-year statute of limitations 26

27 3 Petitioner conceded in his opposition to the motion to dismiss that (1) “342 days of the one-year statute 28 1 period expired on or about April 3, 2020—68 days before Petitioner filed this action. 2 Petitioner’s objection is unavailing and misapplies tolling principles. The Magistrate 3 Judge correctly tolled the time between the filing of his initial state court petition through 4 the California Supreme Court’s denial of the petition. Compare Doc. No. 10 at 8–9, with 5 Evans, 546 U.S. at 193 (stating that the statute of limitations is tolled between the lower 6 court reaching an adverse decision on a habeas petition and the petitioner timely filing a 7 petition in the higher state court). Thus, the Court OVERRULES Petitioner’s fourth 8 objection. 9 Fifth, Petitioner argues that the Magistrate Judge erroneously found that there was 10 no miscarriage of justice “that would bring the petition through the Schlup procedural 11 gateway.” Doc. No. 11 at 13. Petitioner argues that employee log entries “contradict[] 12 any notion whatsoever that [the] view into the cell was completely obstructed by the 13 cardboard” and do not show that there were repeated delays in the inmate counts. Doc. 14 No. 11 at 14–15. 15 Despite being barred by the statute of limitations, a habeas petition can be heard on 16 the merits if the petitioner demonstrates that a “a failure to entertain his claim would 17 constitute a fundamental miscarriage of justice.” Larsen v. Soto, 742 F.3d 1083, 1095 18 (9th Cir. 2013) (citing Lee v. Lampert, 653 F.3d 929, 937–38 (9th Cir. 2011)). The 19 miscarriage of justice inquiry requires the petitioner to show that “a constitutional 20 violation has probably resulted in the conviction of one who is actually innocent.” 21 Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 22 (1986)). “To pass through the Schlup gateway, a ‘petitioner must show that it is more 23 likely than not that no reasonable juror would have convicted him in the light of the new 24 evidence.’” Larsen, 742 F.3d at 1095 (citing Lee, 653 F.3d at 938). This standard is 25 “demanding” and typically involves “dramatic new evidence of innocence.” Id. 26

27 tolling for the untolled 91-days between March 11, 2020 . . . [and] June 10, 2020.” See Doc. No. 8 at 9– 28 1 Here, Petitioner has not met this demanding standard and has not shown that it is 2 more likely than not that no reasonable juror would have convicted Petitioner in light of 3 new evidence. Petitioner has not shown that the RVR hearing official’s guilty finding 4 probably resulted in the conviction of an actually innocent person. During the RVR 5 hearing, Petitioner provided a piece of paper with questions for Officer Castenada and 6 Sargant Meadows and provided various documents to the hearing officer. See Doc. No. 7 6-5 at 32, 34, 35. During the hearing, Petitioner conceded that “I put the cardboard back 8 in the window at the 0500 hours count to get [the officer’s] attention because he kept 9 bothering me and I wanted to talk to him.” Doc. No. 6-5 at 33, 36. Petitioner argues his 10 proffered new evidence will show that the view into his cell was not “completely 11 obstructed by cardboard.” Doc. No. 11 at 14 (emphasis added). Petitioner does not 12 dispute at least a portion of his cell window was obstructed and loses sight of the core of 13 the RVR: officers needed to address the obstruction, which delayed the inmate count. 14 See Doc. No. 6-5 at 28. In sum, Petitioner has not met the demanding Schlup standard. 15 Thus, the Court OVERRULES Petitioner’s fifth objection.4 16 IV. CERTIFICATE OF APPEALABILITY 17 In addition to his objections, Petitioner requests that the Court issue a certificate of 18 appealability. See Doc. No. 11 at 17. 19 Under AEDPA, a state prisoner seeking to appeal a district court’s denial of a 20 habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 21 The district court may issue a certificate of appealability if the petitioner “has made a 22 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To 23 satisfy this standard, a petitioner must show that “reasonable jurists would find the 24 25

26 4 Petitioner also appears to argue that there was a miscarriage of justice because an officer “refused to 27 retrieve and assess” exculpatory evidence and the hearing deprived him of due process. Doc. No. 11 at 15, 16. The Court finds Petitioner’s argument unavailing because the proffered evidence does not meet 28 1 ||district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 2 ||McDaniel, 529 U.S. 473, 484 (2000). 3 A district court that issues an order denying a habeas petition must either grant or 4 ||deny a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). The 5 ||Ninth Circuit has noted that the standard for granting a certificate of appealability is 6 ||“relatively low.” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). A 7 ||petitioner “need not show that he should prevail on the merits,” Lambright v. Stewart, 8 ||220 F.3d 1022, 1025 (9th Cir. 2000), but may be entitled to a certificate when the 9 ||“questions are adequate to deserve encouragement to proceed further.” Barefoot v. 10 Estelle, 463 U.S. 880, 893 n.4 (1983) (quoting Gordon v. Willis, 516 F. Supp. 911, 913 11 ||(N.D. Ga. 1980)), superseded on other grounds by 28 U.S.C. § 2253(c)(2). Here, 12 ||Petitioner has failed to make “a substantial showing of the denial of a constitutional 13 ||right,” 28 U.S.C. § 2253(c)(2), and reasonable jurists would not find debatable this 14 ||Court’s assessment of Petitioner’s claims. See Slack, 529 U.S. at 484. Accordingly, the 15 ||Court DENIES Petitioner’s request for a certificate of appealability. 16 V. CONCLUSION 17 For the foregoing reasons, the Court OVERRULES Petitioner’s objections, 18 ||ADOPTS the Magistrate Judge’s R&R, GRANTS Respondent’s motion to dismiss and 19 ||DISMISSES the Petition without leave to amend, and DENIES Petitioner’s request for a 20 ||certificate of appealability. The Court DIRECTS the Clerk of Court to enter judgment 21 ||accordingly and close the case. 22 IT IS SO ORDERED. 23 24 ||Dated: February 23, 2021 25 ‘ Ju 26 be MICHAEL M. an 27 United States District Judge 28