Henderson v. Pollard

• Court: District Court, S.D. California
• Decided: March 1, 2022
• Docket: 3:20-cv-00169
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS ALLEN HENDERSON, Case No.: 20-cv-00169-AJB-DEB

12 REPORT AND Petitioner, 13 RECOMMENDATION vs. ON PETITION FOR WRIT OF 14 HABEAS CORPUS

15 M. POLLARD, Warden, 16 Respondent. 17 18

19 This Report and Recommendation is submitted to United States District Judge 20 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1.e and 21 72.3.e. 22 I. INTRODUCTION 23 Petitioner Thomas Allen Henderson is an inmate at Richard J. Donovan Correctional 24 Facility. On January 24, 2020, he filed a Petition for Writ of Habeas Corpus pursuant to 25 28 U.S.C. § 2254. Dkt. No. 1. The Petition asserts: (1) “trial counsel . . . utterly failed to 26 investigate and defend against alleged charges”; and (2) “[t]he state knowingly used 27 28 1 perjured testimony to obtain a conviction.” Id. at 10, 11. Henderson requests an evidentiary 2 hearing. Id. at 1, 24. 3 Respondent filed a Motion to Dismiss the Petition and lodged the state court record. 4 Dkt. No. 13. Henderson filed an Objection. Dkt. No. 14. Respondent replied and lodged 5 Henderson’s relevant mental health records. Dkt. Nos. 20, 22.1 For the reasons discussed 6 below, the Court recommends DENYING Henderson’s Petition. 7 II. PROCEDURAL BACKGROUND 8 In 2013, a San Diego County Superior Court jury found Henderson guilty of: 9 (1) forcible sodomy; and (2) inflicting great bodily injury and assault by means likely to 10 produce great bodily injury. Dkt. No. 13-1 at 247–48. On December 20, 2013, the Superior 11 Court entered judgment and sentenced Henderson to seventy-five years to life plus ten 12 years and imposed fines and fees. Id. 13-1 at 252–53. 13 Henderson asserted on appeal that: (1) the Superior Court should have stayed the 14 assault sentence instead of running it concurrently with the forcible sodomy sentence; and 15 (2) a portion of the fees was unauthorized. Dkt. No. 13-2. The California Court of Appeal 16 agreed with both arguments and stayed Henderson’s assault sentence and struck a portion 17 of the fees imposed. Dkt. No. 13-5 at 5. 18 In 2019, Henderson filed a Petition for Writ of Habeas Corpus in the California 19 Supreme Court raising the same issues he asserts here: ineffective assistance of trial 20 counsel and the state’s use of perjured testimony. Dkt. No. 13-6. The California Supreme 21 Court denied his petition as untimely. Dkt. No. 13-7. 22

23 1 Because the Court relies on these state court and mental health records not contained in 24 the Petition, the Court construes Respondent’s Motion as an Answer to the Petition 25 pursuant to Rules 4 and 5 of the Rules Governing § 2254 Cases. See Crim v. Benov, No. 10-cv-01600-OWW-JLT, 2011 WL 1636867, at *3 (E.D. Cal. Apr. 29, 2011) (“[T]he 26 Court has the inherent power under the Rules Governing Section 2254 Cases to construe 27 Respondent’s motion to dismiss as an answer on the merits and Petitioner’s opposition to the motion to dismiss as a traverse.”), aff’d, 471 F. App’x 670 (9th Cir. 2012). 28 1 On January 24, 2020, Henderson filed this Petition. Dkt No. 1. Respondent asserts 2 the Petition is untimely and procedurally defaulted. Dkt. No. 13. Henderson asks the Court 3 to excuse his delayed filing because DNA exonerates him, and he “‘lacks the ability to be 4 competent’ and is either mentally ill and/or has a severe learning disability.” Dkt. No. 14 5 at 2 (emphasis omitted). The Court ordered Respondent “to file a reply brief addressing 6 whether Petitioner is entitled to equitable tolling based on mental illness” and requested 7 Respondent file any relevant medical and/or mental health records. Dkt. No. 15. 8 Respondent submitted Henderson’s California Department of Corrections and 9 Rehabilitation (“CDCR”) mental health records with his Reply. Dkt. Nos. 20, 22. 10 III. DISCUSSION 11 Respondent argues Henderson’s Petition is untimely and procedurally defaulted 12 because he did not file this Petition within the applicable limitation periods. The Court 13 agrees. 14 A. Statute Of Limitations 15 AEDPA’s 1-year statute of limitations governs Henderson’s Petition. See Wixom v. 16 Washington, 264 F.3d 894, 895 (9th Cir. 2001) (“Since April 24, 1996, state prisoner 17 habeas petitions have been subject to the statute of limitations enacted as part of the 18 [AEDPA].”). Under AEDPA: 19 A 1-year [statute] of limitations shall apply to an application for a writ of habeas 20 corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of — 21 22 (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; 23 (B) the date on which the impediment to filing an application created by State 24 action in violation of the Constitution or laws of the United States is 25 removed, if the applicant was prevented from filing by such State action; 26 (C) the date on which the constitutional right asserted was initially recognized 27 by the Supreme Court, if the right has been newly recognized by the 28 1 Supreme Court and made retroactively applicable to cases on collateral review; or 2 3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 5 28 U.S.C. § 2244(d)(1)(A)-(D). 6 The California Court of Appeal entered judgment in Henderson’s criminal case on 7 January 8, 2015. Dkt. No. 13-8 at 3. His conviction and sentence became final forty days 8 later, on February 17, 2015.2 Absent a delayed start to the limitations period under 9 28 U.S.C. § 2244(d)(1)(B)–(D) or tolling, Henderson had one year (until 10 February 17, 2016) to file a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). 11 1. Delayed Start 12 Henderson does not argue 28 U.S.C. § 2244(d)(B)–(D) delays the start of the 13 AEDPA limitations period and subsections (B) through (C) plainly do not apply. Although 14 Henderson does not argue subsection (D) applies, his Petition asserts trial counsel “failed 15 and refused to investigate [exculpatory] evidence” and the “state knowingly used perjured 16 testimony to obtain a conviction.” Dkt. No. 1 at 10–11. The Court, therefore, examines 17 whether these allegations entitle him to relief from the statute of limitations. 18 a. Failure to Investigate and Present Exculpatory Evidence 19 Under subparagraph (D), the limitations period commences upon discovery of 20 previously unknown evidence upon which the habeas claim is based. See Hasan v. Galaza, 21 254 F.3d 1150, 1155 (9th Cir. 2001) (“If [the petitioner] did not have, or with the exercise 22 23 24 2 Cal. R. Ct. 8.366(b)(1) (The Court of Appeal’s decision becomes final thirty days after its 25 filing.); Cal. R. Ct. 8.500(e)(1) (A petition for review to the California Supreme Court “must be served and filed within 10 days after the Court of Appeal decision is final in that 26 court.”); Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005) (finding petitioner’s 27 conviction became final forty days after the California Court of Appeal dismissed his direct appeal). 28 1 of due diligence could not have had, knowledge of the factual predicate of [all] elements 2 of his claim [the limitations period is delayed until such discovery].”). Henderson’s 3 Petition, however, is not based on previously unknown facts. Instead, it concerns events 4 known to Henderson that occurred during his trial. 5 Henderson’s Petition alleges his trial counsel failed to investigate and, therefore, did 6 not argue “[a] complete absence of Petitioner’s DNA, semen, body fluid, blood, injury at 7 the crime scene, or on/in the alleged victim.” Dkt. No. 1 at 17, 19 (quotation marks 8 omitted). The absence of Henderson’s DNA, however, was in evidence at trial and raised 9 on appeal. See Dkt. No. 13-2 at 11 (Henderson’s Opening Appeal Brief: “[A]ppellant was 10 excluded” from the “DNA from the bloodstains from the interior of the [victim’s] 11 vehicle.”); see also Dkt. No. 13-1 at 50 (People’s Trial Brief: “Testing of five [s]emen 12 stains in the van revealed four unknown contributors.”). 13 Henderson’s Petition also alleges his counsel “refused to permit [witnesses] to testify 14 at trial to provide exculpatory evidence” and his “entire defense examination took less than 15 eighteen minutes using only [one] witness.” Dkt. No. 1 at 19, 22. The record also 16 establishes Henderson’s prior knowledge of these alleged omissions. See Dkt. No. 13-6 17 at 6 (Henderson’s State Petition for Writ of Habeas Corpus: “Other defense witnesses were 18 waiting to testify, but counsel surprised even the judge by resting the defense.”). 19 b. Perjured Testimony 20 Henderson’s perjured testimony claim rests on inconsistencies in the victim’s trial 21 testimony. These alleged inconsistencies were also known to Henderson at trial. Compare 22 Dkt. No. 1 at 20–21, 23 (claiming the victim testified Henderson “hit her ‘with a bottle, 23 repeatedly kicked’ [the victim], [and] cracked [her] teeth” and she did not “use . . . drugs 24 that night of the ‘rape’”), with id. at 21 (claiming if Henderson “did all this to [the victim,] 25 Petitioner’s body would have logically and scientifically displayed some form of injury to 26 his body – it did not”), and Dkt. No. 13-2 at 11 (Henderson’s Opening Appeal Brief: “A 27 toxicologist testified [the victim] tested positive for cocaine, among other things.”). 28 1 In sum, because Henderson knew about the factual predicates of the habeas claims 2 he raises here before the date his conviction became final on February 17, 2015, his Petition 3 (which was not filed until January 24, 2020) is untimely under 28 U.S.C. § 2244(d)(1). 4 2. Statutory Tolling 5 The AEDPA’s 1-year limitations period is tolled for “the time during which a 6 properly filed application for State post-conviction or other collateral review . . . is 7 pending.” 28 U.S.C. § 2244(d)(2). “An application for post-conviction review is pending 8 while a California petitioner completes a full round of state collateral review, including 9 during the period between (1) a lower court’s adverse determination, and (2) the prisoner’s 10 filing of a notice of appeal, provided that the filing of the notice of appeal is timely under 11 state law.” Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008) (citations and internal 12 quotations omitted). 13 Henderson first sought state collateral review on August 12, 2019, when he filed a 14 habeas petition in the California Supreme Court. The California Supreme Court denied the 15 petition as untimely. Dkt. No. 13-8 at 6. Henderson’s untimely state petition, therefore, 16 precludes statutory tolling. Pace v. DiGuglielmo 544 U.S. 408, 417 (2005) (“Because the 17 state court rejected petitioner’s [Pennsylvania Post Conviction Relief Act] petition as 18 untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under 19 § 2244(d)(2).”). 20 3. Equitable Tolling 21 Equitable tolling is available when a petitioner can show “(1) that he has been 22 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 23 way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal 24 quotations omitted). Equitable tolling is unavailable in most cases because “the threshold 25 necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.” 26 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 27 212 F.3d 1005, 1010 (7th Cir. 2000)). 28 1 Henderson, who “bears the burden of showing that equitable tolling is appropriate,” 2 Gaston, 417 F.3d at 1034, argues: (1) “DNA evidence exonerates [him] and qualifies under 3 the actual innocence doctrine”; and (2) he “lacks the ability to be competent and is either 4 mentally ill and/or has a severe learning disability.” Dkt. No. 14 at 2 (emphasis and 5 quotation marks omitted). The Court evaluates each argument in turn. 6 a. Actual Innocence 7 “[A] credible claim of actual innocence constitutes an equitable exception to 8 AEDPA’s limitations period, and a petitioner who makes such a showing may . . . have his 9 otherwise time-barred claims heard on the merits.” Lee v. Lampert, 653 F.3d 929, 932 (9th 10 Cir. 2011). “[T]o present otherwise time-barred claims to a federal habeas court . . . a 11 petitioner must produce sufficient proof of his actual innocence to bring him ‘within the 12 narrow class of cases . . . implicating a fundamental miscarriage of justice’ . . . [and] [t]he 13 evidence of innocence must be ‘so strong that a court cannot have confidence in the 14 outcome of the trial unless the court is also satisfied that the trial was free of nonharmless 15 constitutional error.’” Id. at 937–38 (quoting Schlup v. Delo, 513 U.S. 298, 314–16 (1995)). 16 An actual innocence claim requires “new reliable evidence – whether it be exculpatory 17 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that 18 was not presented at trial.” Id. at 938. 19 Henderson bases his actual innocence claim on alleged exonerating DNA evidence. 20 Dkt. No. 14 at 1. This is neither “new reliable evidence” (as discussed, the absence of 21 Henderson’s DNA from the victim’s vehicle was presented at trial) nor evidence that is “so 22 strong that [the] court cannot have confidence in the outcome of [his] trial” (because the 23 victim's DNA was found on Henderson). Schulup, 513 U.S. at 316. Henderson’s “actual 24 innocence” claim, therefore, does not entitle him to equitable tolling. 25 b. Mental Impairment 26 A mental impairment can support equitable tolling. Bills v. Clark, 628 F.3d 1092, 27 1097 (9th Cir. 2010) (The Ninth Circuit has “long recognized equitable tolling in the 28 context of a petitioner’s mental illness.”). A mental impairment, however, is insufficient 1 by itself to warrant equitable tolling. Instead, a petitioner must establish the mental 2 impairment “in fact caused him to fail to meet the AEDPA filing deadline.” Laws v. 3 Lamarque, 351 F.3d 919, 923 (9th Cir. 2003); Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 4 2014) (“[T]he mental impairment must be so debilitating that it is the but-for cause of the 5 delay, and even in cases of debilitating impairment the petitioner must still demonstrate 6 diligence.”). 7 Henderson seeks equitable tolling based on his “documented cognitive learning 8 disability with a T.A.B.E. [Test of Adult Basic Education] score of 2.6.” Dkt. No. 14 at 1, 9 4 (emphasis and quotation marks omitted). But Henderson has not alleged this (or any 10 other) mental impairment was the “but-for cause” of his failure to timely file his Petition. 11 A low T.A.B.E. score, standing alone, is insufficient to establish equitable tolling. See 12 Cardenas v. Warden, No. 20-cv-08237-SVW-GJS, 2021 WL 880402, at *6 (C.D. Cal. Jan. 13 29, 2021) (finding equitable tolling was not available where petitioner asserted he had a 14 low TABE score and “cognitive learning disorder” without explaining how they “affected 15 his ability to seek relief following the State Conviction”), report and recommendation 16 adopted, 2021 WL 3208026 (July 27, 2021); Chavez v. Yates, No. 08-cv-6512-JVS-PLA, 17 2009 WL 2163501, at *5 (C.D. Cal. July 14, 2009) (granting motion to dismiss petition as 18 time barred because “[c]onclusory assertions of mental incapacity will not suffice” to 19 justify equitable tolling of the statute). 20 The Court has independently reviewed Henderson’s November 15, 2013 21 psychological examination (Dkt. No. 13-1 at 148) and his CDCR mental health records 22 from January 27, 2014 to the present (Dkt. No. 22). Nothing in them suggests Henderson 23 suffered from a mental impairment that prevented him from meeting the AEDPA filing 24 deadline. Henderson’s “mental impairment” claim, therefore, does not entitle him to 25 equitable tolling.3 26

27 3 The Court finds no grounds to hold an evidentiary hearing on Henderson’s alleged mental 28 1 B. Procedural Default 2 Respondent also argues Henderson’s Petition is procedurally defaulted. Dkt. No. 13- 3 8 at 3–5. 4 “[A] federal court will not review the merits of claims, including constitutional 5 claims, that a state court declined to hear because the prisoner failed to abide by a state 6 procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). This principle applies to untimely 7 state petitions. See Nolan v. Callahan, No. 20-55714, 2021 WL 3829361, at *1 (9th Cir. 8 Aug. 27, 2021) (“California’s timeliness requirement is an independent and adequate state 9 procedural rule which will bar federal relief if violated.”) (citing Walker v. Martin, 562 10 U.S. 307, 316–317 (2011)). 11 A habeas petitioner may obtain federal review of a procedurally defaulted claim by 12 demonstrating “cause” and “prejudice.” Coleman v. Thompson, 501 U.S. 729, 750 (1991). 13 Adequate cause must be an “external” factor that cannot fairly be attributed to the 14 petitioner. Id. at 753. Prejudice requires “actual harm resulting from the alleged error.” 15 Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). If a petitioner is “unable to establish 16 cause and prejudice . . . [he] may obtain review of his constitutional claims” by 17 demonstrating actual innocence of the crime underlying the conviction. Schlup, 513 U.S. 18 at 313–15 (internal quotations omitted). Actual innocence requires “new facts [that] 19 20 21 22 petitioner’s mental incompetence was not so severe as to cause the untimely filing of his 23 habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner’s allegations of mental 24 incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see also Orthel v. 25 Yates, 795 F.3d 935, 939–40 (9th Cir. 2015) (evidentiary hearing not required where record of mental incompetence is amply developed). The record is amply developed here because 26 the Court has received and reviewed: (1) the evidence Henderson submitted in support of 27 his mental incompetence claim; and (2) Henderson’s mental health records from 2014 to the present. 28 1 raise[ ] sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result 2 of [his] trial . . . .” Id. at 317. 3 The California Supreme Court found the claims Henderson raises in this Petition 4 (incompetent trial counsel and prosecutorial misconduct) untimely. Dkt. No. 13-8 at 3. 5 Henderson’s claims, therefore, are procedurally defaulted unless he can: (1) show cause 6 and prejudice; or (2) make a credible claim of actual innocence. Henderson does not claim 7 cause or prejudice, nor does the Court find any in the record. And, as explained above, 8 Henderson has no viable actual innocence claim. Henderson’s Petition, therefore, is 9 procedurally defaulted. 10 C. Henderson Is Not Entitled to An Evidentiary Hearing 11 Henderson requests an evidentiary hearing on the “lack of scientific evidence and 12 documented habitual perjury by [the victim].” Dkt. No. 1 at 24. As discussed, the record 13 establishes Henderson’s Petition is both time-barred and procedurally defaulted. An 14 evidentiary hearing, therefore, is unnecessary. See Totten v. Merkle, 137 F.3d 1172, 1176 15 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by 16 reference to the state court record.”). 17 IV. CONCLUSION 18 For the foregoing reasons, IT IS HEREBY RECOMMENDED the Court issue an 19 Order: (1) approving and adopting this Report and Recommendation; and (2) denying 20 Henderson’s Petition as untimely and procedurally defaulted. 21 IT IS HEREBY ORDERED that on or before March 17, 2022, any party to this 22 action may file and serve written objections to this Report and Recommendation. The 23 document should be captioned “Objection to Report and Recommendation.” 24 / / 25 / / 26 / / 27 / / 28 / / 1 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 2 || within seven (7) days of the filing of the objections. The parties are advised that failure 3 || to file objections within the specified time may waive the right to raise those objections on 4 || appeal of this Court order. Martinez v Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 5 IT IS SO ORDERED. 6 Dated: February 28, 2022 □ PTT g Honorable Daniel E. Butcher United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Il