1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN GILMORE, Case No.: 20cv2230-WQH-MDD
11 Petitioner, ORDER 12 v. 13 RICK HILL, Warden, 14 Respondent. 15 HAYES, Judge: 16 The matter before the Court is the Report and Recommendation issued by the 17 Magistrate Judge. (ECF No. 36). 18 I. BACKGROUND 19 On November 9, 2020, Petitioner Steven Gilmore initiated this action by filing a 20 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1). The Petition 21 alleges a “Boykin/Tahl violation” in connection with a 2001 California state court 22 conviction. (Id. at 4). In support of his Petition, Petitioner states that his “Alternative 23 Sentence Conviction obtained by guilty plea … was unlawful and not made voluntarily and 24 intelligent nor advised of the consequences of the plea.” (Id.). 25 On November 3, 2021, Respondent Rick Hill filed a Response to the Petition. (ECF 26 No. 29 at 2). Respondent contends that that the habeas petition is successive, barred by the 27 statute of limitations, and that it fails on the merits. On January 28, 2022, Petitioner filed a 28 Reply. (ECF No. 34). 1 On April 18, 2022, the Magistrate Judge issued the Report and Recommendation. 2 (ECF No. 36). The Report and Recommendation recommends that the Court deny the 3 Petition as barred by the one-year limitations period imposed by the Antiterrorism and 4 Effective Death Penalty Act of 1996 (“AEDPA”). The Magistrate Judge concluded that the 5 limitations period began to run on January 26, 2005—the day after the judgment became 6 final—and that tolling does not apply. 7 On June 3, 2022, Petitioner filed an Objection to the Report and Recommendation, 8 challenging the Magistrate Judge’s determination that the limitations period commenced 9 on January 26, 2005. (ECF No. 39). The docket reflects no further filings. 10 II. LEGAL STANDARD ON REPORT AND RECOMMENDATION 11 The duties of the district court in connection with a report and recommendation 12 issued by a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 13 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 14 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 15 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). 16 The district court need not review de novo those portions of a report and recommendation 17 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 18 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 19 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 20 review, de novo, findings and recommendations that the parties themselves accept as 21 correct.”). 22 III. COMMENCEMENT OF THE LIMITATIONS PERIOD 23 In the Report and Recommendation, the Magistrate Judge determined that 24 “Petitioner’s judgment became final for the purposes of AEDPA on January 25, 2005, 25 ninety days after the California Supreme Court denied his petition for review.” (ECF No. 26 36 at 6). The Magistrate Judge determined that the commencement of the limitations period 27 was not delayed by any subsequent (1) impediment to filing an application created by State 28 action in violation of the Constitution or laws of the United States; (2) initial recognition 1 by the Supreme Court of the constitutional right asserted; or (3) discovery of the factual 2 predicate of Petitioner’s claim. The Magistrate Judge concluded that the limitations period 3 commenced on January 26, 2005. 4 In his Objection, Petitioner challenges the determination that the limitations period 5 commenced on January 26, 2005. Petitioner contends that the sentence imposed in 6 connection with his 2001 conviction was enhanced under California’s “three strikes law” 7 by a 1991 conviction stemming from a plea bargain that was not knowing and intelligent. 8 Petitioner contends that his 1991 plea was not knowing and intelligent because he was not 9 informed that his conviction could later be used as a predicate for an increased sentence if 10 there was an intervening change in the law. Petitioner contends that this violated California 11 Penal Code Section 1016.8, a statute that was enacted on January 1, 2020. Petitioner 12 contends that the limitations period commenced on January 1, 2020, as “the legal 13 significance of the 1991 plea bargain could not [have] reasonably been know[n] to 14 Petitioner” until the statute was enacted. (ECF No. 39 at 2). 15 28 U.S.C. § 2244(d) states: 16 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 17 The limitation period shall run from the latest of— 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing an application created 20 by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such 21 State action; 22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 23 recognized by the Supreme Court and made retroactively applicable to 24 cases on collateral review; or (D) the date on which the factual predicate of the claim or claims 25 presented could have been discovered through the exercise of due 26 diligence. 27 28 U.S.C. § 2244(d). 28 1 The Petition alleges that the San Diego County Superior Court entered Petitioner’s 2 judgment of conviction on December 14, 2001. On October 27, 2004, the California 3 Supreme Court denied review. Petitioner did not file a petition for certiorari in the United 4 States Supreme Court. Under § 2244(d)(1)(A), “direct review” includes the period “within 5 which a petitioner can file a petition for a writ of certiorari from the United States Supreme 6 Court.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The judgment became final 7 for the purpose of § 2244(d)(1)(A) on January 25, 2005, ninety days after the California 8 Supreme Court denied Petitioner’s appeal. See Bowen, 188 F.3d at 1159. 9 Petitioner contends that the limitations period instead commenced on January 1, 10 2020, because “the legal significance of the 1991 plea bargain could not [have] reasonably 11 been know[n] to Petitioner” until California Penal Code Section 1016.8 was enacted. (ECF 12 No. 39 at 2). California Penal Code Section 1016.8 provides, in part: 13 A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other 14 changes in the law that may occur after the date of the plea is not knowing and 15 intelligent.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN GILMORE, Case No.: 20cv2230-WQH-MDD
11 Petitioner, ORDER 12 v. 13 RICK HILL, Warden, 14 Respondent. 15 HAYES, Judge: 16 The matter before the Court is the Report and Recommendation issued by the 17 Magistrate Judge. (ECF No. 36). 18 I. BACKGROUND 19 On November 9, 2020, Petitioner Steven Gilmore initiated this action by filing a 20 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1). The Petition 21 alleges a “Boykin/Tahl violation” in connection with a 2001 California state court 22 conviction. (Id. at 4). In support of his Petition, Petitioner states that his “Alternative 23 Sentence Conviction obtained by guilty plea … was unlawful and not made voluntarily and 24 intelligent nor advised of the consequences of the plea.” (Id.). 25 On November 3, 2021, Respondent Rick Hill filed a Response to the Petition. (ECF 26 No. 29 at 2). Respondent contends that that the habeas petition is successive, barred by the 27 statute of limitations, and that it fails on the merits. On January 28, 2022, Petitioner filed a 28 Reply. (ECF No. 34). 1 On April 18, 2022, the Magistrate Judge issued the Report and Recommendation. 2 (ECF No. 36). The Report and Recommendation recommends that the Court deny the 3 Petition as barred by the one-year limitations period imposed by the Antiterrorism and 4 Effective Death Penalty Act of 1996 (“AEDPA”). The Magistrate Judge concluded that the 5 limitations period began to run on January 26, 2005—the day after the judgment became 6 final—and that tolling does not apply. 7 On June 3, 2022, Petitioner filed an Objection to the Report and Recommendation, 8 challenging the Magistrate Judge’s determination that the limitations period commenced 9 on January 26, 2005. (ECF No. 39). The docket reflects no further filings. 10 II. LEGAL STANDARD ON REPORT AND RECOMMENDATION 11 The duties of the district court in connection with a report and recommendation 12 issued by a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 13 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 14 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 15 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). 16 The district court need not review de novo those portions of a report and recommendation 17 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 18 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 19 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 20 review, de novo, findings and recommendations that the parties themselves accept as 21 correct.”). 22 III. COMMENCEMENT OF THE LIMITATIONS PERIOD 23 In the Report and Recommendation, the Magistrate Judge determined that 24 “Petitioner’s judgment became final for the purposes of AEDPA on January 25, 2005, 25 ninety days after the California Supreme Court denied his petition for review.” (ECF No. 26 36 at 6). The Magistrate Judge determined that the commencement of the limitations period 27 was not delayed by any subsequent (1) impediment to filing an application created by State 28 action in violation of the Constitution or laws of the United States; (2) initial recognition 1 by the Supreme Court of the constitutional right asserted; or (3) discovery of the factual 2 predicate of Petitioner’s claim. The Magistrate Judge concluded that the limitations period 3 commenced on January 26, 2005. 4 In his Objection, Petitioner challenges the determination that the limitations period 5 commenced on January 26, 2005. Petitioner contends that the sentence imposed in 6 connection with his 2001 conviction was enhanced under California’s “three strikes law” 7 by a 1991 conviction stemming from a plea bargain that was not knowing and intelligent. 8 Petitioner contends that his 1991 plea was not knowing and intelligent because he was not 9 informed that his conviction could later be used as a predicate for an increased sentence if 10 there was an intervening change in the law. Petitioner contends that this violated California 11 Penal Code Section 1016.8, a statute that was enacted on January 1, 2020. Petitioner 12 contends that the limitations period commenced on January 1, 2020, as “the legal 13 significance of the 1991 plea bargain could not [have] reasonably been know[n] to 14 Petitioner” until the statute was enacted. (ECF No. 39 at 2). 15 28 U.S.C. § 2244(d) states: 16 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 17 The limitation period shall run from the latest of— 18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing an application created 20 by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such 21 State action; 22 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 23 recognized by the Supreme Court and made retroactively applicable to 24 cases on collateral review; or (D) the date on which the factual predicate of the claim or claims 25 presented could have been discovered through the exercise of due 26 diligence. 27 28 U.S.C. § 2244(d). 28 1 The Petition alleges that the San Diego County Superior Court entered Petitioner’s 2 judgment of conviction on December 14, 2001. On October 27, 2004, the California 3 Supreme Court denied review. Petitioner did not file a petition for certiorari in the United 4 States Supreme Court. Under § 2244(d)(1)(A), “direct review” includes the period “within 5 which a petitioner can file a petition for a writ of certiorari from the United States Supreme 6 Court.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The judgment became final 7 for the purpose of § 2244(d)(1)(A) on January 25, 2005, ninety days after the California 8 Supreme Court denied Petitioner’s appeal. See Bowen, 188 F.3d at 1159. 9 Petitioner contends that the limitations period instead commenced on January 1, 10 2020, because “the legal significance of the 1991 plea bargain could not [have] reasonably 11 been know[n] to Petitioner” until California Penal Code Section 1016.8 was enacted. (ECF 12 No. 39 at 2). California Penal Code Section 1016.8 provides, in part: 13 A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other 14 changes in the law that may occur after the date of the plea is not knowing and 15 intelligent. [] A provision of a plea bargain that requires a defendant to generally waive 16 future benefits of legislative enactments, initiatives, appellate decisions, or 17 other changes in the law that may retroactively apply after the date of the plea is void as against public policy. 18 19 Cal. Penal Code § 1016.8(a)(4), (b). 20 The passage of California Penal Code Section 1016.8 did not remove an impediment 21 to the filing of a petition—Petitioner was free to file a petition at any time after he was 22 sentenced in 2001. See Shannon v. Newland, 410 F.3d 1083, 1087-88 (9th Cir. 2005) 23 (holding that the issuance of a state court decision that created a legal basis for the 24 petitioner’s substantive arguments did not remove an impediment to filing an application 25 because petitioner “was free to file such a petition at any time,” and explaining that “[t]he 26 limited case law applying § 2244(d)(1)(B) has dealt almost entirely with the conduct of 27 state prison officials who interfere with inmates' ability to prepare and to file habeas 28 petitions by denying access to legal materials”). Section 2244(d)(1)(B) does not apply. 1 Petitioner’s claim is based on the passage of a state statute. Section 2244(d)(1)(C), 2 which requires the initial recognition of a constitutional right by the United States Supreme 3 Court, does not apply. 4 The factual predicate for Petitioner’s claim is the use of Petitioner’s 1991 conviction 5 to enhance Petitioner’s sentence in 2001. Under § 2244(d)(1)(D), “[t]ime begins when the 6 prisoner knows (or through diligence could discover) the important facts, not when the 7 prisoner recognizes their legal significance.” Hasan v. Galaza, 254 F.3d 1150, 1155 n.3 8 (9th Cir. 2001) (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)); see Shannon, 9 410 F.3d at 1088 (“If a change in (or clarification of) state law … could qualify as a ‘factual 10 predicate,’ then the term ‘factual’ would be meaningless.”). Petitioner knew or could have 11 discovered the factual predicate for his claim on the date he was subjected to an enhanced 12 sentence in 2001. Section 2244(d)(1)(D) does not apply. The Court adopts the Report and 13 Recommendation with respect to the recommendation that the limitations period 14 commenced on January 26, 2005, pursuant to § 2244(d)(1)(A). 15 IV. STATUTORY TOLLING AND EQUITABLE TOLLING 16 No party has filed an objection to the conclusion of the Report and Recommendation 17 that Petitioner is not entitled to statutory or equitable tolling. The Court has reviewed the 18 related portions of the Report and Recommendation and adopts the Report and 19 Recommendation with respect to the recommendations that Petitioner is not entitled to 20 statutory or equitable tolling and that the Petition be denied as barred by the statute of 21 limitations. 22 V. MERITS 23 In his Objection, Petitioner contends that the Report and Recommendation “failed 24 to adequately address the merits[] that the State Court violated the principle of fundamental 25 fairness of the 14th Amendment’s due process clause” and “failed to weigh in on how 26 [California Penal Code Section 1016.8] created a new procedural rule implicit in the 27 concept of ordered liberty.” (ECF No. 39 at 1). The Court declines to address these 28 | |}arguments concerning the merits of the Petition because the Court has determined that the 2 || Petition is barred by the statute of limitations. 3 VI. CERTIFICATE OF APPEALABILITY 4 A certificate of appealability must be obtained by a petitioner in order to pursue an 5 |;appeal from a final order in a § 2254 habeas corpus proceeding. See 28 U.S.C. § 6 ||2253(c)(1)(A); Fed. R. App. P. 22(b). When a district court denies habeas relief on 7 || procedural grounds, “the petitioner seeking a [Certificate of Appealability] must show both 8 || ‘that jurists of reason would find it debatable whether the petition states a valid claim of 9 || the denial of a constitutional right and that jurists of reason would find it debatable whether 10 district court was correct in its procedural ruling.’” See Gonzalez v. Thaler, 565 U.S. 11 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Jurists of 12 reason would not find it debatable whether this Court’s ruling that the Petition is barred by 13 statute of limitations is correct. A certificate of appealability is denied. 14 VI. CONCLUSION 15 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 36) is 16 || adopted. Petitioner Steven Gilmore’s Objection (ECF No. 39) is overruled. The Petition is 17 || denied. 18 IT IS FURTHER ORDERED that a certificate of appealability 1s denied. 19 20 |} Dated: July 18, 2022 BME: ie Z. Ma 21 Hon. William Q. Hayes 9 United States District Court 23 24 25 26 27 28