Fink v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID FINK, Case No. 21-cv-969-MMA (RBM)

12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; 14 STATE OF CALIFORNIA, 15 Respondent. [Doc. No. 9]

16 GRANTING RESPONDENT’S 17 MOTION TO DISMISS; AND

18 [Doc. No. 6] 19 DECLINING TO ISSUE 20 CERTIFICATE OF 21 APPEALABILITY 22 23 On May 21, 2021, David Fink (“Petitioner”), a state prisoner proceeding pro se, 24 filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging his state court 25 conviction. See Doc. No. 1. The Court dismissed the case, see Doc. No. 2, and on June 26 7, 2021, Petitioner filed an amended petition, see Doc. No. 3 (the “Petition”). 27 Respondent filed a motion to dismiss the Petition, which Petitioner opposed. See Doc. 28 Nos. 6, 7. United States Magistrate Judge Ruth Bermudez Montenegro has issued a 1 detailed and well-reasoned Report and Recommendation (“R&R”), recommending that 2 the Court grant Respondent’s motion and dismiss the Petition. Doc. No. 9 at 10.1 3 Petitioner timely filed an objection to the R&R. Doc. No. 10. For the reasons set forth 4 below, the Court OVERRULES Petitioner’s objections, ADOPTS the R&R in its 5 entirety, GRANTS Respondent’s motion to dismiss, DISMISSES the Petition, and 6 DECLINES to issue a certificate of appealability. 7 I. BACKGROUND 8 On January 31, 2018, Petitioner was convicted after a jury trial for three counts of 9 using personal identifying information of another (Cal. Penal Code § 530.5), forgery 10 (Cal. Penal Code § 475(c)), burglary (Cal. Penal Code § 459), possession of a forged 11 driver’s license (Cal. Penal Code § 470b), and failure to appear while on bail (Cal. Penal 12 Code § 1320.5). Doc. No. 6-14 at 5. Further, the jury found “a prior strike conviction 13 pursuant to Penal Code §[§] 667(b)–(i)/668/1170.13 and an on bail allegation under Penal 14 Code § 12022.1(b).” Id. The state trial court dismissed the prior strike conviction, and 15 Petitioner was sentenced to a six years and eight months term in prison. Id. Petitioner 16 appealed his conviction to the California Court of Appeal. Doc. No. 6-2. The Court of 17 Appeal found that there was a technical error with Petitioner’s sentence, but the error 18 only impacted his restitution fines and the court affirmed and remanded the case for 19 resentencing. People v. Gaynor, 255 Cal. Rptr. 3d 775, 777, 786 (Ct. App. 2019). 20 Petitioner filed a petition for writ of habeas corpus in the Superior Court of 21 California, San Diego on January 11, 2021. Doc. No. 6-7 at 2. Petitioner’s writ raised a 22 variety of claims, including issues with interviewing witnesses, self-representation, 23 calling witnesses at trial, confronting witnesses, suppression of evidence, prosecutorial 24 misconduct, and ineffective assistance of counsel. Id. at 2–3. The Superior Court denied 25 the petition because “[a]ll of Petitioner’s claims were cognizable on appeal, though he did 26 27 28 1 not raise them.” Doc. No. 6-14 at 6. The court reasoned that “[c]ontentions which could 2 have been raised on appeal or which were raised and rejected on appeal ordinarily cannot 3 be renewed in a petition for writ of habeas corpus because habeas corpus cannot serve as 4 a second appeal.” Id. (first citing In re Dixon, 264 P.2d 513, 514–515 (Cal. 1958); and 5 then citing In re Waltreus, 397 P.2d 1001 (Cal. 1965)). On March 7, 2021, Petitioner 6 filed a substantially similar habeas corpus petition in the California Court of Appeal. 7 Doc. No. 6-13. The Court of Appeal denied the petition, stating that the petition was 8 “procedurally barred as untimely because he delayed nearly 34 months after sentencing 9 and more than 13 months after the judgment was affirmed on appeal before seeking 10 habeas corpus relief in the trial court and has provided no explanation for the delay.” 11 Doc. No. 6-16 at 5. The court also found that Petitioner failed “to state a prima facie case 12 for relief.” Id. On March 30, 2021, Petitioner filed another substantially similar petition 13 for writ of habeas corpus in the California Supreme Court. Doc. No. 6-17 at 1–30. The 14 California Supreme Court denied the petition. Doc. No. 6-18 at 3. 15 Petitioner filed the present petition for writ of habeas corpus, claiming that he was 16 denied the right to: (1) self-representation under Faretta; (2) develop evidence and 17 interview witnesses; (3) call witnesses at trial; (4) confront, and cross-examine, his 18 accusers; (5) suppression of certain evidence; and (6) be free from prosecutorial 19 misconduct. Doc. No. 3 at 1. 20 Judge Montenegro issued an R&R on Respondent’s motion to dismiss, in which 21 she recommends the Court grant Respondent’s motion and dismiss the Petition. See Doc. 22 No. 9 at 10. Judge Montenegro found that Petitioner’s claims are procedurally defaulted 23 in this Court because these same claims were raised at the state level and denied based 24 upon the state procedural timeliness rule. Id. Judge Montenegro further found that 25 Petitioner failed to provide evidence rebutting procedural default. Id. at 8–10. Petitioner 26 objects to the R&R. Doc. No. 10. 27 28 1 II. LEGAL STANDARD 2 The duties of the district court in connection with a magistrate judge’s R&R are set 3 forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). Where the 4 parties object to an R&R, “[a] judge of the [district] court shall make a de novo 5 determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. 6 § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States v. Reyna- 7 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (providing that the district court must make a 8 de novo determination of any part of the magistrate judge’s disposition that a party has 9 properly objected to). A district judge may “accept, reject, or modify, in whole or in part, 10 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); 11 see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989) (quoting 28 U.S.C. 12 § 636(b)); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). 13 III. DISCUSSION 14 When the last reviewing state court dismisses a petition for habeas corpus based on 15 the grounds that the petition does not comply with a state procedural rule, then the habeas 16 petition is procedurally defaulted. Trest v. Cain, 522 U.S. 87, 89 (1997). Procedural 17 default is typically considered a “‘defense’ that the State is ‘obligated to raise’ and 18 ‘preserve’ if it is not to ‘lose the right to assert the defense thereafter.’” Id. (quoting Gray 19 v. Netherland, 518 U.S. 152, 166 (1996)). The deciding court must then determine 20 whether the state court’s determination rests on grounds that are “independent” of federal 21 law and “adequate” to indefinitely bar federal review. Coleman v. Thompson, 501 U.S. 22 722, 735 (1991). A state procedural bar is said to be “independent” if “the state law basis 23 for the decision [is] not . . . interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 24 702, 704 (9th Cir. 2001) (first citing Michigan v. Long, 463 U.S. 1032, 1040–41 (1983); 25 and then citing Harris v. Reed, 489 U.S. 255, 265 (1989)). For a state procedural bar to 26 be “adequate,” “the state procedural rule must be ‘strictly or regularly followed’ and 27 ‘consistently applied.’” Id. (quoting Morales v. Calderon, 85 F.3d 1387, 1392 (9th 28 Cir.1996)). 1 Pursuant to the Ninth Circuit, California’s untimeliness rule is an independent state 2 procedural ground because it “is not interwoven with federal law.” Bennett v. Mueller, 3 322 F.3d 573, 581 (9th Cir. 2003). Further, the Dixon bar under California law “provides 4 that state habeas is not available for claims which could have been raised on appeal but 5 were not.” Peay v. Allison, No 20CV2388-WQH (KSC), 2021 WL 1733389, at *5 (S.D. 6 Cal. May 3, 2021). The Dixon bar is an adequate and independent state procedural bar 7 “sufficient to uphold a procedural default in [federal court].” Id. After the respondent 8 “carrie[s] the initial burden by identifying California’s Dixon rule as precluding federal 9 law,” the burden shifts to the petitioner who must then bring forward “specific allegations 10 that demonstrate the inadequacy of the state procedure, including citation to authority 11 demonstrating inconsistent application of the rule.” Bennett, 322 F.3d at 586; Walker v. 12 Martin, 562 U.S. 307, 316–18 (2011) (providing that California’s timeliness rule is 13 consistently applied and clearly established). A petitioner may also obtain federal review 14 of a procedurally defaulted claim by showing cause and prejudice attributed to the default 15 or that failing to consider the claim would produce a “fundamental miscarriage of 16 justice.” Coleman, 501 U.S. at 750; see King v. La Marque, 464 F.3d 963, 967 (9th Cir. 17 2006). 18 Here, the California Court of Appeal denied Petitioner’s claims, which are the 19 same claims raised in this federal habeas Petition, on the grounds that his claims were 20 untimely.2 See Doc. No. 6-16 at 5. Thus, the state appellate court’s denial of Petitioner’s 21 claim because it was untimely lies upon “independent” and “adequate” state law grounds, 22 which means Petitioner’s claims are procedurally defaulted unless he provides rebuttal 23 evidence showing that he falls into one of the two exceptions provided above. 24 25 26

27 2 The California Court of Appeal was the last reviewing court to address the merits of the claims as the 28 1 A. Cause and Prejudice 2 To make a showing for cause and prejudice attributed to the default, a petitioner 3 must show cause is “something external to the petitioner, something that cannot fairly be 4 attributed to him.” Coleman, 501 U.S. at 763. Additionally, the Supreme Court has 5 established that “counsel acts as the petitioner’s agent and thus any attorney error in post- 6 conviction proceedings is generally attributable to the petitioner himself.” Smith v. 7 Baldwin, 510 F.3d 1127, 1147 (9th Cir. 2007); see also Coleman, 501 U.S. at 752–53. 8 Further, “the mere fact that counsel failed to recognize the factual or legal basis for a 9 claim, or failed to raise the claim despite recognizing it, does not constitute cause for a 10 procedural default.” Murray v. Carrier, 477 U.S. 478, 487 (1986). The Court need not 11 address prejudice if Petitioner does not sufficiently show there is “cause.” Smith, 510 12 F.3d at 1147. 13 Here, Petitioner failed to rebut the procedural bar with cause of the delay evidence. 14 Petitioner appears to argue cause of delay was due to the fact that his appellate attorney 15 refused to “provide the record,” he was “incapacitated three weeks with covid-19” and 16 “had to learn to write all over again,” “the petition was delayed by USPS and/or jail 17 officials,” and “the clerk was delayed in filing the petition (due to the second wave of 18 covid-19).” Doc. No. 7 at 4; see also Doc. No. 10 at 3–4 (reiterating in the R&R 19 objection Petitioner’s argument that his appellate attorney and ineffective assistance of 20 counsel explain the delay), 5 (stating again that Petitioner had to learn to write all over 21 again). Petitioner elaborates on his ineffective assistance of counsel by providing that he 22 discussed with his appellate counsel the issues to be raised in his state petition, but he 23 was “extremely surprised when none of the issues were presented in the appeal,” thereby 24 arguing ineffective assistance of counsel as a reason for delay. Doc. No. 7 at 2; see also 25 Doc. No. 10 at 3–4. Petitioner’s ineffective assistance of counsel claim for timely filing 26 of his post-conviction claims is not persuasive given the Supreme Court’s ruling on 27 counsel’s status as petitioner’s agent for post-conviction claims and procedural error. See 28 Smith, 510 F.3d at 1147; Murray, 477 U.S. at 487 (“[T]he mere fact that counsel failed to 1 recognize the factual or legal basis for a claim, or failed to raise the claim despite 2 recognizing it, does not constitute cause for a procedural default.”). Further, the Court 3 notes that “[b]ecause ‘there is no constitutional right to an attorney in state post- 4 conviction proceedings,’ attorney ineffectiveness ‘in the post-conviction proceedings is 5 not considered cause for the purposes of excusing the procedural default at that stage.’” 6 Smith, 510 F.3d at 1146–47 (citation omitted) (first quoting Coleman, 501 U.S. at 753; 7 and then quoting Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir. 2000)). Further, 8 Petitioner argues that while he was “incapacitated for three weeks” due to a Covid-19 9 diagnosis, the statute of limitations was tolled. Id. However, Covid-19 diagnosis is 10 insufficient cause to satisfy cause as to untimely filing with the Court of Appeal.3 See 11 McCormick v. Adams, 621 F.3d 970, 975 (9th Cir. 2010). Thus, Petitioner failed to show 12 cause for the delay, and the Court need not consider the prejudice component. See Smith, 13 510 F.3d at 1147. Judge Montenegro correctly found that Petitioner has not shown the 14 cause and prejudice exception applies. 15 B. Fundamental Miscarriage of Justice 16 To make a showing that failure to consider the claims will produce a fundamental 17 miscarriage of justice, “a petitioner’s case must fall within the ‘narrow class of cases . . . 18 [involving] extraordinary instances when a constitutional violation probably has caused 19 the conviction of one innocent of the crime.’” Smith, 510 F.3d at 1139 (quoting 20 McCleskey v. Zant, 499 U.S. 467, 494 (1991)). In order to pass through the narrow 21 Schlup gateway, a petitioner must present sufficient actual innocence proof to bring him 22 “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.’” 23 Schlup v. Delo, 513 U.S. 298, 314–15 (1995) (quoting McCleskey, 499 U.S. at 494). 24

25 26 3 The Court notes that the state appellate court decision does not find that Petitioner’s claims are untimely because the statute of limitations had run. See Doc. No. 6-16. Rather, the appellate court 27 found his claims untimely due to a delay in presenting claims, which is a violation of California’s timeliness requirements. Id. at 5. Thus, any argument concerning tolling of the statute of limitations is 28 1 Such evidence must be “so strong that a court cannot have confidence in the outcome of 2 the trial unless the court is also satisfied that the trial was free of nonharmless 3 constitutional error.” Id. at 316. A petitioner must support his claims “with new reliable 4 evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 5 accounts, or critical physical evidence—that was not presented at trial.” Id. at 324. 6 A petitioner must essentially “show that it is more likely than not that no reasonable juror 7 would have convicted him in the light of the new evidence.” Larsen v. Soto, 742 F.3d 8 1083, 1095 (9th Cir. 2013) (quoting Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011)). 9 The Schlup standard is “demanding” and typically involves “dramatic new evidence of 10 innocence.” Id. 11 Here, Petitioner has not identified any evidence in the Petition, his opposition to 12 the motion to dismiss, or his objection to the R&R that would indicate he is innocent or 13 that a fundamental miscarriage of justice has occurred.4 Thus, Petitioner has not met the 14 demanding standard and fails to show it is more likely than not that no reasonable juror 15 would have convicted him considering the existence of any new evidence. The Court 16 therefore finds Judge Montenegro did not err in finding that Petitioner failed to present 17 evidence to show the miscarriage of justice exception has been satisfied. 18 Accordingly, Judge Montenegro correctly concluded that Petitioner’s habeas 19 claims are procedurally defaulted in this Court and Petitioner failed to present rebuttal 20 evidence to show an exception applies. See Doc. No. 9 at 10. Petitioner does not directly 21 address the procedural default or his lack of rebuttal evidence in his objection to the 22 23 24 4 For example, in his objection to the R&R, Petitioner provides “there was no testimony that the 25 identification card number belonged to anyone,” so he “was convicted of a crime that did not occur.” Doc. No. 10 at 6. Further, Petitioner states he was unable to compel a witness at trial, and the prosecutor 26 had recorded an interview with that witness. Id. at 7. Petitioner also argues that “[t]he court would not compel the prosecutor to produce CJC.com’s business records that was in the hands of the LA 27 prosecutor.” Id. In sum, the Court finds Petitioner’s arguments unavailing because the proffered arguments are not evidence that meet the demanding Schlup standard so as to put the present case within 28 1 ||R&R.° See Doc. No. 10. Thus, the Court ADOPTS the R&R and GRANTS 2 || Respondent’s motion to dismiss on this basis. 3 IV. CERTIFICATE OF APPEALABILITY 4 The federal rules governing habeas cases brought by state prisoners require a 5 || district court that dismisses or denies a habeas petition to grant or deny a certificate of 6 || appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. 7 || § 2254. For the reasons stated above, and those set forth in detail in Judge Montenegro’s 8 ||R&R, Petitioner has not shown “jurists of reason would find it debatable whether the 9 || district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 10 ||(2000). Accordingly, the Court DECLINES to issue a certificate of appealability. 11 V. CONCLUSION 12 For the foregoing reasons, the Court OVERRULES Petitioner’s objections, 13 || ADOPTS the R&R in its entirety, GRANTS Respondent’s motion to dismiss, and 14 || DISMISSES the Petition. The Court DECLINES to issue a certificate of appealability. 15 || The Court DIRECTS the Clerk of Court to enter judgment accordingly and close the 16 || case. 17 18 IT IS SO ORDERED. 19 Dated: March 7, 2022 20 JMbikuh UM - /hiohlr 21 HON. MICHAEL M. ANELLO 22 United States District Judge 23 24 25 26 27 28 || Rather, Petitioner appears to reiterate his habeas Petition claims in his objection.