(HC) Herrera v. Matteson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO E. HERRERA, Case No. 1:19-cv-01150-NONE-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS UNTIMELY CLAIMS1 13 v. 14-DAY OBJECTION PERIOD 14 ROBERT NOUSHMEN, (Doc. No. 24) 15 Respondent. 16 17 18 19 20 Pending before the Court is Respondent’s motion to dismiss filed May 10, 2021. (Doc. 21 No. 24). Respondent moves for dismissal of grounds two and three of Petitioner’s Amended 22 Petition on the basis that these grounds are time-barred. (Id.). Petitioner filed a response to the 23 motion to dismiss. (Doc. No. 27). Upon review of the pleadings and applicable law, the 24 undersigned finds grounds two and three of the Amended Petition do not relate back to the 25 original Petition and are untimely. Accordingly, the undersigned recommends Respondent’s 26 motion to dismiss grounds two and three of the Amended Petition be granted. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2019). 1 BACKGROUND 2 State prisoner, Petitioner Armando E. Herrera (“Petitioner” or “Herrera”), initiated this 3 action by constructively filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 4 on August 20, 2019.2 (Doc. No. 1, “Petition”). The Petition challenged Herrera’s judgment of 5 conviction for: (count 1) second degree murder (count 1); (count two) shooting at an occupied 6 dwelling; and (count 3) carrying a loaded firearm in public while actively participating in a 7 criminal street gang. (Id.). The state superior court resentenced Herrera to an indeterminate 8 sentence of 40 years to life on May 1, 2018. (Id.). The Petition contained the following grounds 9 and sub-grounds for relief: (1) (a) insufficiency of the evidence, and (b) ineffective assistance of 10 trial counsel for (i) not raising a vital issues, (ii) not providing Herrera with the April 6, 2014 11 police report until after trial, (iii) not allowing Herrera to testify, (iv) not suppressing gun 12 evidence, and (v) not arguing relevant case law during sentencing; (2) due process violations 13 stemming from Herrera’s not being able to testify at trial; and (3) unlawful application of the 14 gang enhancement. (Id. at 4-5). On May 12, 2020, Respondent moved to dismiss the Petition on 15 the basis that most3 of the grounds in the Petition were unexhausted, and unless Herrera could 16 show he was entitled to a stay, the Petition was subject to dismissal as a mixed petition. (Doc. 17 No. 11). On June 4, 2020, Herrera moved for a stay and abeyance of his Petition for the purpose 18 of exhausting his unexhausted claims before the state courts. (Doc. No. 16). Respondent 19 opposed the motion to stay. (Doc. No. 17). On July 14, 2020, the then-assigned magistrate judge 20 issued an order to show cause to Petitioner why his motion to stay should not be denied. (Doc. 21 No. 18). In that order, the then assigned magistrate judge provided Herrera an opportunity to 22 show good cause under Rhines v. Weber, 544 U.S. 269, 277 (2005) and explained his options 23 under Kelly v. Small, 315 F.3d 1963, 1070-71 (9th Cir. 2002), as well as his option to dismiss his 24 unexhausted claims and proceed with his exhausted claims only. (Id. at 5-6). Herrera notified the 25

26 2 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the date the prisoner delivers it to prison authorities for forwarding to the clerk of court. Houston v. Lack, 487 27 U.S. 266 (1988). The Court applies the mailbox rule to Petitioner’s initial Petition and Amended Petition. 3Specifically, Respondent argued all of Petitioner’s ineffective assistance of counsel claims and his claim 28 predicated upon his inability to testify were unexhausted. 1 Court that he wished to dismiss his unexhausted claims and proceed with only his exhausted 2 claims. (Doc. No. 19). Herrera accompanied his notice with his Amended Petition. (Doc. No. 3 20). 4 The Amended Petition identifies three grounds for relief: (1) insufficiency of the 5 evidence; (2) trial court error for refusing to bifurcate the gang allegations; and (3) due process 6 violations stemming from the trial court destruction of records necessary for appellate review. 7 (Id. at 7-15). In response, Respondent filed the instant motion to dismiss seeking the dismissal of 8 grounds two and three in the Amended Petition as untimely. (Doc. No. 24). In support, 9 Respondent relies on the state court record previously filed in this matter. (Doc. No. 13). 10 Respondent concedes that the initial Petition was timely filed. (Doc. No. 24 at 3). Respondent 11 also concedes that the first ground raised in the initial Petition—whether the evidence was 12 insufficient to support his conviction (Doc. No. 1 at 4)—is the same claim as ground one in the 13 Amended Petition and is timely (Doc. No. 20 at 7-9). At issue are grounds two and three in the 14 Amended Petition. Respondent argues these grounds are untimely and should be dismissed 15 because both grounds were raised for the first time in Petitioner’s Amended Petition, filed on 16 September 3, 2020, three months after AEDPA’s statute of limitations expired. (Doc. No. 24 at 17 2-3). Respondent argues that because grounds two and three do not “relate back” to any of the 18 grounds raised in the initial Petition, they are untimely and should be dismissed. (Doc. No. 24 at 19 2-3). In opposition, Herrera argues the ground three relate back because the “new claims are 20 based on the same facts as the original pleading and only change[] the legal theory.” (Doc. No. 21 27 at 2). Herrera concedes that claim two in the Amended Petition, refusing to bifurcate the gang 22 allegations, does not relate back to the original Petition. (Id. at 3). Regardless of this concession, 23 the undersigned considers both grounds two and three. 24 II. APPLICABLE LAW 25 A. AEDPA’s Statute of Limitations 26 Title 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act 27 of 1996, sets a one-year period of limitations to the filing of a habeas petition by a person in state 28 custody. This limitation period runs from the latest of: 1 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 2 review; 3 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 4 the United States is removed, if the applicant was prevented from filing by such State action; 5 (C) the date on which the constitutional right asserted was initially 6 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable 7 to cases on collateral review; or 8 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due 9 diligence. 10 28 U.S.C. § 2244(d)(1). Here, Herrera does not allege, nor does it appear from the pleadings or 11 the record, that the statutory triggers in subsections (B)-(D) apply. Thus, the limitations period 12 began to run on the date Herrera’s conviction became final. 28 U.S.C. § 2244(d)(1)(A); Jimenez 13 v. Quarterman, 555 U.S. 113, 120 (2009). 14 Herrera was originally sentenced for his crimes of conviction on July 25, 2014. (Doc. No. 15 13-1 at 2). Herrera’s sentence was subjected to multiple enhancements. (Id.). Herrera directly 16 appealed his conviction. On October 13, 2017, the California Court of Appeal affirmed two of 17 his counts, reduced one count to a misdemeanor, reversed the gang enhancements and remanded 18 the case to the superior court to allow the prosecutor the opportunity to retry the gang 19 enhancements or, in the alternative, for the superior court to resentence Petitioner. (Doc. No. 13- 20 2). The California Supreme Court denied review. (Doc. No. 13-4). 21 Upon remand to the superior court, the prosecutor declined to retry Herrera on the gang 22 enhancements. (Doc. No. 24 at 2). In resentencing, the superior court sentenced Herrera to an 23 indeterminate term of 40-years-to-life on May 1, 2018. (Doc. No. 13-5). Petitioner’s judgment 24 was affirmed by the court of appeal on April 23, 2019. (Doc. No. 13-6). Petitioner did not seek 25 review before the California Supreme Court. 26 Accordingly, Herrera’s conviction became final on the expiration of the time for seeking 27 review in the California Supreme Court. See Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) 28 (“[F]or a state prisoner who does not seek review in a State’s highest court, the judgment 1 becomes “final” on the date that the time for seeking such review expires.”); Waldrip v. Hall, 548 2 F.3d 729, 735 (9th Cir. 2008) (Where petitioner “did not petition the California Supreme Court 3 for review,” “his conviction became final forty days later.”). In California, an appellate court 4 determination is final thirty days after the order is issued. Cal. Rules of Court, rule 8.366(b)(1) 5 (“[A] Court of Appeal decision in a proceeding under this chapter . . . is final in that court 30 days 6 after filing.”). Here, the appellate court affirmed Herrera’s resentencing on April 23, 2019, and 7 his sentence became final thirty days later, on May 23, 2019. The time for seeking discretionary 8 review before the California Supreme Court expired ten days later, on Monday, June 3, 2019.4 9 Cal. Rules of Court, rule 8.500(e)(1) (“A petition for review must be served and filed within 10 10 days after the Court of Appeal decision is final in that court. For purposes of this rule, the date of 11 finality is not extended if it falls on a day on which the office of the clerk/executive officer is 12 closed.”). Accordingly, AEDPA’s one-year statute of limitations began running the next day, 13 June 4, 2019. Therefore, Herrera had until June 4, 2020 to file his federal habeas petition, absent 14 statutory or equitable tolling. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001) 15 (adopting anniversary method to calculate one-year statutory period). Herrera’s initial Petition 16 was filed on August 20, 2019, before the expiration of the one-year federal limitation period. 17 (Doc. No. 1). His Amended Petition filed on September 3, 2020 was filed just shy of three 18 months after the AEDPA deadline. (Doc. No. 20). Petitioner concedes his Amended Petition was 19 filed three months late. (Doc. No. 27 at 1). 20 III. ANALYSIS 21 The Federal Rules of Civil Procedure are applicable to habeas cases “to the extent they are 22 not inconsistent.” Rules Governing Section 2254 Cases, Rule 12. Federal Rule of Civil 23 Procedure 15 has been made expressly applicable to habeas corpus petitions. 28 U.S.C. § 2242. 24 Rule 15 provides an amendment relates back to the original pleading where “the amendment 25 asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out—or attempted 26 to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Under habeas law, when a 27 4 Respondent calculates the 10-day period to expire on June 2, 2019. (Doc. No. 24 at 3). Because June 2, 28 2019 was a Sunday, the 10-day period expired the next business day, on Monday, June 3, 2019. 1 petitioner raises new grounds in an amended petition, which is filed after the AEDPA’s statute of 2 limitations has expired, the new grounds must relate back to a ground in the original, timely filed, 3 petition for the new grounds to be deemed timely. Mayle v. Felix, 545 U.S. 644, 650 (2005). In 4 the habeas context, “[a]n amended habeas petition . . . does not relate back (and thereby escape 5 AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts that 6 differ in both time and type from those the original pleading set forth.” Id. 7 Here, Herrera’s second and third claims in the Amended Petition (failure to bifurcate and 8 destruction of records) fail the “time and type” test when considering the claims raised in the 9 initial Petition (even if considering the admittedly unexhausted claims). As for the “time” 10 requirement, the facts supporting the insufficient evidence claim and claims of ineffective 11 assistance of counsel all arose during the evidence phase of the trial. Herrera’s claim challenging 12 the sentencing enhancement would have occurred after the trial during the sentencing phase. In 13 contrast, the facts supporting the failure to bifurcate claim (ground two) would have arisen prior 14 to trial in a pretrial motion to bifurcate. The facts supporting the destruction of documents 15 (ground three) would have arisen after the trial concluded, when Herrera was directly appealing 16 his conviction. As for the “type” requirement, the two claims in the Amended Petition are clearly 17 of a different type of claim than the claims asserted in the original Petition. The facts related to 18 trial court error concerning the bifurcation issue or destruction of documents are not the same as 19 claims challenging the sufficiency of evidence, ineffectiveness of trial counsel, or challenges to 20 sentencing. Accordingly, the undersigned finds that grounds two and three do not relate back to 21 any of the grounds, whether exhausted or not, raised in the initial Petition. Because grounds two 22 and three do not relate back, the undersigned recommends that both be dismissed as untimely.5 23

24 5 The Court recognizes that Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020), a recent Ninth Circuit opinion, held that “[i]f a petitioner attempts to set out habeas claims by identifying specific grounds for 25 relief in an original petition and attaching a court decision that provides greater detail about the facts supporting those claims, that petition can support an amended petition’s relation back.” Id. at 1167 26 emphasis added). However, neither party argues, nor does the Court discern, that Ross is applicable in the instant matter. Petitioner did append portions of his state court record as an exhibit to his original Petition. 27 However, the exhibit contains facts “unrelated to the grounds for relief asserted” in his original Petition and “those facts were not ‘attempted to be set out’” in his original Petition and thus “cannot form a basis 28 for relation back.” Id. at 1168. 1 Accordingly, it is RECOMMENDED: 2 Respondent’s Motion to Dismiss (Doc. No. 24) be GRANTED and grounds two and three 3 | of Petitioner’s Amended Petition (Doc. No. 20) be DISMISSED as untimely and Respondent be 4 | ordered to only respond to the merits of ground one of the Amended Petition. 5 NOTICE TO PARTIES 6 These findings and recommendations will be submitted to the United States district judge 7 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 8 | (14) days after being served with these findings and recommendations, a party may file written 9 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Parties are advised that failure to file objections within the 11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 Dated: _ November 15, 2021 Mihaw. Wh. foareh Zaskth 15 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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