(HC)Gilmore v. Hill

• Court: District Court, S.D. California
• Decided: April 18, 2022
• Docket: 3:20-cv-02230
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN GILMORE, Case No.: 20cv2230-WQH-MDD

12 Petitioner, REPORT AND RECOMMENDATION 13 v. RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS 14 RICK HILL, Warden, 15 Respondent.

17 18 I. INTRODUCTION 19 Petitioner Steven Gilmore (“Petitioner”), a state prisoner proceeding pro 20 se and in forma pauperis, has filed a Petition for Writ of Habeas Corpus 21 (“Petition”) pursuant to 28 U.S.C. § 2254 presenting a single claim 22 challenging the validity of a guilty plea. (Docs. 1, 8.) Respondent Rick Hill 23 (“Respondent”), Warden of Folsom State Prison, filed a response in opposition 24 on November 3, 2021. (Doc. 29.) Petitioner filed a reply brief on January 28, 25 2021. (Doc. 34.) 26 The motion was referred to U.S. Magistrate Judge Mitchell D. Dembin 1 Civil Rule 72.1(d). After a thorough review of the papers on file, the facts, 2 and the applicable law, the Court respectfully RECOMMENDS Petitioner’s 3 Petition be DENIED. 4 II. BACKGROUND 5 A. Conviction 6 In 1991, Judge Thomas J. Whelan of the San Diego Superior Court 7 sentenced Petitioner to eight years in prison for voluntary manslaughter 8 (Cal. Penal Code § 192(a)), kidnapping (Cal. Penal Code § 207(a)), and 9 firearm enhancements (Cal. Penal Code § 12022(a)), pursuant to a plea 10 agreement. (Doc. 18–3 at 15). 11 In 2001, a jury found Petitioner guilty of two counts of robbery while 12 armed (Cal. Penal Code §§ 211, 12022(a)(1)), possession of a firearm by a 13 felon (Cal. Penal Code § 12021(a)), and possession of ammunition by a felon 14 (Cal. Penal Code § 12316(b)(1)). (Doc. 1 at 1; Doc. 18–1 at 2 (citing San Diego 15 Super. Court Case No. SCN121340).) In a separate proceeding, the superior 16 court found, based on the 1991 conviction, that Petitioner had a prior serious 17 felony conviction (Cal. Penal Code § 667(a)(1)), and two prior strike 18 convictions (Cal. Penal Code § 667(b)-(i)). (Doc. 18–1 at 2.) The superior 19 court sentenced Petitioner to eighty-two years to life in prison. (Doc. 1 at 1; 20 Doc. 18–1 at 2.) 21 B. Direct Appeal 22 Petitioner appealed his 2001 conviction to the California Court of 23 Appeal. (Doc. 1 at 3 (citing Cal. Ct. App. Case No. D039279); Doc. 18–1 at 1.) 24 In 2003, the Court of Appeal affirmed the conviction. (Doc. 1 at 3; Doc. 18–1 25 at 1.) Petitioner then appealed his conviction to the California Supreme 26 Court. (Doc. 1 at 3; Doc. 18–2 at 1 (Cal. Supreme Court Case No. S116235).) 1 3; Doc. 18–2 at 1.) Petitioner did not file a petition for certiorari in the 2 United States Supreme Court. (Doc. 1 at 3.) 3 C. Collateral Review in State Court 4 On May 27, 2020, Petitioner filed a motion for modification of his 2001 5 sentence in San Diego Superior Court, citing to newly enacted California 6 Penal Code § 1016.8 which cites to Boykin v. Alabama, 395 U.S. 238 (1969) 7 and the due process requirement that a defendant’s guilty plea be knowing, 8 intelligent, and voluntary. (Doc. 1 at 3; Doc. 18–3 at 1–17 (San Diego Super. 9 Court Case No. SCN121340).) On June 11, 2020, Judge Sim von Kalinowski 10 issued an order denying resentencing. (Doc. 1 at 2; Doc. 18–4 at 1.) Judge 11 Kalinowski found the request untimely and found section 1016.8 inapplicable 12 because Petitioner was convicted by a jury after trial, not by a plea bargain. 13 (Doc. 18–4 at 1.) 14 On June 30, 2020, Petitioner filed in the California Court of Appeal a 15 “Notice of Appeal to the Denial of Relief under the United States 16 Constitutional [sic] 14th Amendment and the Case Law Standard Boykin v. 17 Alabama (1969) 395 U.S. 238; Assembly Bill 1618; Penal Code § 1016.8.” 18 (Doc. 1 at 2; Doc. 18–5 at 1.) The Court of Appeal dismissed the appeal on 19 July 1, 2020, finding the superior court’s order denying resentencing as non- 20 appealable. (Doc. 18–6 at 1); see also People v. Gilmore, Case No. D077639 21 (Cal. Ct. App. July 1, 2020) (available at 22 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41). 23 Petitioner alleges he made an unsuccessful attempt to file an appeal 24 with the California Supreme Court, which he presented for the first time in 25 his reply brief regarding his motion to stay this case.1 (Doc. 25 at 1, 7.) He 26 1 attaches a September 18, 2020 letter from the California Supreme Court 2 which states as follows: 3 [w]e hereby return unfiled your petition for review, which we received September 18, 2020. A check of the Court of Appeal docket shows that 4 the dismissal order was filed July 1, 2020. This court lost jurisdiction to 5 act on any petition for review [on] September 2, 2020. (See Cal. Rules of Court, rule 8.500(e).) Without this jurisdiction, this court is unable to 6 consider your request for legal relief. 7 8 (Id.) Petitioner contends that during the time he received this letter, Folsom 9 State Prison experienced an “explosive COVID-19 outbreak” and he 10 contracted the virus. (Id. at 1.) 11 D. Federal Habeas Corpus Petition 12 On November 9, 2020, Petitioner filed the instant Petition and cited a 13 “Boykin/Tahl Violation” as the ground for relief. (Doc. 1 at 4); see Boykin, 395 14 U.S. 238; In re Tahl, 1 Cal.3d 122 (1969). To support his claim for relief, 15 Petitioner states, “[a]lternative [s]entence [c]onviction obtained by guilty plea 16 which was unlawful and not made voluntarily and intelligent[ly] nor advised 17 of the consequences of the plea.” (Doc. 1 at 4.) 18 III. LEGAL STANDARD 19 “The statutory authority of federal courts to issue habeas corpus relief 20 for persons in state custody is provided by 28 U.S.C. § 2254, as amended by 21 the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” 22 Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254(d), a petition for 23 writ of habeas corpus may not be granted with respect to any claim that was 24 adjudicated on the merits in state court unless the adjudication: “(1) resulted 25 in a decision that was contrary to, or involved an unreasonable application of, 26 1 clearly established Federal law, as determined by the Supreme Court of the 2 United States; or (2) resulted in a decision that was based on an 3 unreasonable determination of the facts in light of the evidence presented in 4 the State court proceeding.” 28 U.S.C. § 2254(d). “A state court decision is 5 ‘contrary to’ established federal law if it ‘applies a rule that contradicts the 6 governing law set forth in [Supreme Court] cases’ or ‘confronts a set of facts 7 that are materially indistinguishable from a decision of [the] Court and 8 nevertheless arrives at a result different from [Supreme Court] precedent.’” 9 Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams 10 v. Taylor, 529 U.S. 362, 405–06 (2000) (O’Connor, J., concurring)). “The state 11 court’s decision is ‘an unreasonable application’ [of clearly established federal 12 law] if ‘the state court identifies the correct governing legal principle’ but 13 applies the principle unreasonably to the prisoner’s factual situation.” 14 Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at 413). “‘[C]learly 15 established [f]ederal law’ for purposes of § 2254(d)(1) includes only ‘the 16 holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.’” White 17 v. Woodall, 572 U.S. 415, 419 (2014) (quoting Howes v. Fields, 565 U.S. 499, 18 505 (2012)). 19 IV. DISCUSSION 20 The Petition only involves one claim: a “Boykin/Tahl Violation” where 21 Petitioner alleges his “[a]lternative [s]entence [c]onviction” was obtained 22 through an involuntary and unknowing guilty plea. (Doc. 1 at 4.) Petitioner 23 alleges that his 1991 plea agreement violates California Penal Code § 1016.8 24 and was not made voluntarily because he was not advised that the Three 25 Strikes Law could apply to his prior convictions. (Doc. 34 at 3–4; see also Doc. 26 29 at 2.) 1 A. Commencement of the Statute of Limitations Period 2 In accordance with AEDPA, there is a one-year statute of limitations 3 period in which a federal habeas petition may be filed. 28 U.S.C. § 4 2244(d)(2). Petitioner’s judgment became final for purposes of AEDPA on 5 January 25, 2005, ninety days after the California Supreme Court denied his 6 petition for review. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). 7 The statute of limitations for federal habeas corpus began to run on January 8 26, 2005, the day after the judgment became final. 28 U.S.C.A. § 9 2244(d)(1)(A); see Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) 10 (explaining the one-year statute of limitations under AEDPA begins to run 11 the day after the conviction becomes final). Thus, the statute of limitations 12 period would have expired on January 26, 2006, unless Petitioner can show 13 the statute of limitations has a later start date. See 28 U.S.C. § 2244(d). 14 Section 2244(d)(1)(C) provides that the statute of limitations may begin 15 to run on “the date on which the constitutional right asserted was initially 16 recognized by the Supreme Court, if the right has been newly recognized by 17 the Supreme Court and made retroactively applicable to cases on collateral 18 review.” 28 U.S.C. § 2244(d)(1)(C). Petitioner claims the earliest he could 19 have raised the instant habeas claim would have been a day after the 20 enactment of California Penal Code § 1016.8, which became effective on 21 January 1, 2020. (Doc. 34 at 2); see Cal. Penal Code § 1016.8 (West). The 22 Petition was filed on November 9, 2020. (See Doc. 1.) Therefore, Petitioner 23 argues “the AEDPA one-year filing requirement has been tolled the entire 24 time the [California Penal Code §] 1016.8 claim has been pending in state 25 and federal court” and that the Petition is timely in accordance with AEDPA. 26 (Doc. 34 at 2.) 1 California Penal Code § 1016.8, and is not predicated on a constitutional 2 right “newly recognized by the Supreme Court and made retroactively 3 applicable to cases on collateral review.” Slaughter v. California, No. 2:20- 4 CV-1552-JAK-JC, 2020 WL 2097746, at *3 (C.D. Cal. Apr. 30, 2020) (habeas 5 petition alleging claim based on § 1016.8 is subject to statute of limitations 6 under § 2244(d)(1)(A) because a claim based on a new state law is not a newly 7 recognized right by the United States Supreme Court, as required for a 8 trigger date under § 2244(d)(1)(C)); Fletcher v. Sherman, No. CV 20-8538- 9 DSF (AGR), 2021 WL 1022863, at *3 (C.D. Cal. Jan. 19, 2021), R. & R. 10 adopted, 2021 WL 979605 (C.D. Cal. Mar. 15, 2021) (the enactment of state 11 statutes, including specifically Cal. Penal Code § 1016.8, “do[es] not provide a 12 later start date for the statute of limitations under § 2244(d)(1)(C)”). 13 Accordingly, § 2244(d)(1)(C) does not trigger a later commencement date of 14 the limitations period. 15 Sections 2244(d)(1)(B) and 2244(d)(1)(D) are also inapplicable to the 16 Petitioner’s claim. See 28 U.S.C. § 2244(d)(1)(B); 28 U.S.C. § 2244(d)(1)(D). 17 There was no state-created impediment which prevented the timely filing of 18 the Petition, and Petitioner’s claim is not based on the discovery of the 19 factual predicate of his claim. (See id.) Under § 2244(d)(1)(D), “[t]ime begins 20 when the prisoner knows (or through diligence could discover) the important 21 facts, not when the prisoner recognizes their legal significance.” Hasan v. 22 Galaza, 254 F.3d 1150, 1155 n.3 (9th Cir. 2001) (quoting Owens v. Boyd, 235 23 F.3d 356, 359 (7th Cir. 2000). Here, Petitioner knew or should have known 24 the factual predicate for his claims on the date he was subjected to an 25 enhanced sentence for his 2001 conviction, before that judgment became 26 final. See Hernandez v. California, No. 2:20-cv-05930-JLS-JC, 2021 WL 1 Accordingly, the statute of limitations began to run on January 26, 2 2005, the day after the judgment became final. See 28 U.S.C. § 2244(d)(1)(A); 3 see also Corjasso, 278 F.3d at 877. The instant Petition was filed on 4 November 9, 2020, which is untimely under AEDPA unless Petitioner can 5 show he is entitled to statutory or equitable tolling. 6 B. Statutory Tolling 7 AEDPA includes a statutory tolling provision which suspends the 8 limitations period for the time during which a “properly filed” application for 9 post-conviction or other collateral review is “pending” in state court. 28 10 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). A petition 11 rejected by the state court as untimely is not considered “properly filed” and 12 does not toll the limitations period.” Id. 13 “AEDPA’s statutory tolling provision applies to ‘all of the time during 14 which a state prisoner is attempting, through proper use of state court 15 procedures, to exhaust state court remedies with regard to a particular post- 16 conviction application.’” Sasser v. Koenig, No. CV 21-1396 JGB (PVC), 2021 17 WL 3111850, at *4 (C.D. Cal. July 22, 2021) (quoting Harris v. Carter, 515 18 F.3d 1051, 1053 n.3 (9th Cir. 2008)). “Applying these principles to 19 California’s post-conviction procedure . . . the statute of limitations is tolled 20 from the time the first state habeas petition is filed until the California 21 Supreme Court rejects the petitioner’s final collateral challenge.” Harris, 515 22 F.3d at 1053 n.3; see also Carey v. Saffold, 536 U.S. 214, 217–23 (2002) 23 (under California’s “original writ” system, an application for state collateral 24 review is “pending” in the state courts so as to toll the federal statute of 25 limitations during the interval between a lower court’s decision and the filing 26 of a further original state habeas petition in a higher court). 1 the one-year limitations period already has expired. Ferguson v. Palmateer, 2 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the 3 reinitiation of the limitations period that has ended before the state petition 4 was filed”); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (filing a state 5 habeas petition after the AEDPA statute of limitations had expired “resulted 6 in an absolute time bar”). 7 As previously mentioned, Petitioner’s one-year statute of limitations 8 period ran from January 25, 2005 through January 26, 2006. See supra p. 6. 9 The instant Petition was filed on November 9, 2020. There is no evidence of 10 any properly filed application for post-conviction or other collateral review 11 pending in state court which could have tolled the limitations period during 12 the roughly fourteen-year period between January 26, 2006 and November 9, 13 2020. Therefore, Petitioner is not entitled to statutory tolling, and the 14 Petition is untimely absent sufficient equitable tolling. 15 C. Equitable Tolling 16 In addition to statutory tolling, the AEDPA limitations period may also 17 be subject to equitable tolling. Sasser, 2021 WL 3111850, at *6. Equitable 18 tolling is appropriate when the petitioner can show “(1) that he has been 19 pursuing his rights diligently, and (2) that some extraordinary circumstance 20 stood in his way.” Pace, 544 U.S. at 418. “The petitioner must show that ‘the 21 extraordinary circumstances were the cause of his untimeliness and that the 22 extraordinary circumstances made it impossible to file a petition on time.’” 23 Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting Ramirez v. Yates, 24 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger 25 equitable tolling [under AEDPA] is very high, lest the exceptions swallow the 26 rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal 1 statutory purpose of encouraging prompt filings in federal court in order to 2 protect the federal system from being forced to hear stale claims.” Guillory v. 3 Roe, 329 F.3d 1015, 1018 (9th Cir. 2003) (internal quotation marks and 4 citation omitted). 5 The Petition does not expressly seek equitable tolling, nor does it allege 6 any basis for equitable tolling. See Miranda, 292 F.3d at 1065 (habeas 7 petitioners have the burden of proof to show both diligence and extraordinary 8 circumstances to warrant equitable tolling); see also Rudin v. Myles, 781 F.3d 9 1043, 1055 (9th Cir. 2015) (a habeas petitioner “bears a heavy burden to show 10 that she is entitled to equitable tolling”). Petitioner has not presented 11 sufficient evidence to show he has been pursuing his rights diligently or that 12 some extraordinary circumstances have prevented him from filing his claims. 13 See Pace, 544 U.S. at 418. Therefore, equitable tolling is inapplicable, and 14 the Petition should be denied as untimely.2 15 V. CONCLUSION 16 For the foregoing reasons, the Court respectfully RECOMMENDS 17 Petitioner’s Petition be DENIED. 18 This Report and Recommendation is submitted to the United States 19 District Judge assigned to this case under 28 U.S.C. § 636(b)(1) and Local 20 Civil Rule 72.1(c)(1)(d) of the United States District Court for the Southern 21 District of California. Any party may file written objections with the Court 22 and serve a copy on all parties on or before May 2, 2022. The document 23 should be captioned “Objections to Report and Recommendation.” Any reply 24 25 26 2 Given the Court’s recommendation that the Petition be denied as barred by the statute of limitations, the Court does not address whether the Petition is successive and does not 1 ||to the Objections shall be served and filed on or before May 9, 2022. The 9 parties are advised that failure to file objections within the specified time 3 ||may waive the right to appeal the District Court’s Order. Martinez v. Ylst, 4 ||951 F.2d 1158, 1157 (9th Cir. 1991). 5 IT IS SO ORDERED. Dated: April 18, 2022 My, + uu s | [ Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27