Joe Barrios v. Dean Border

• Court: District Court, C.D. California
• Decided: August 20, 2019
• Docket: 2:18-cv-07195
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOE ANTHONY BARRIOS, ) Case No. CV 18-7195-DOC (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE DEAN BORDERS, Warden, ) 14 ) Respondent. ) 15 ) 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the 18 Petition, records on file, and Report and Recommendation of U.S. 19 Magistrate Judge, which recommends that Respondent’s motion to 20 dismiss be granted and judgment be entered denying the Petition 21 as untimely and dismissing this action with prejudice. On June 22 11, 2019, Respondent filed Objections to the R. & R., disputing 23 that the Court has subject-matter jurisdiction to hear the case. 24 On July 1, 2019, Petitioner filed Objections, mostly simply 25 repeating arguments from his opposition to the motion to dismiss. 26 Respondent complains that the Magistrate Judge erred in not 27 finding that the Court lacks subject-matter jurisdiction because 28 Petitioner was allegedly not “in custody” on the conviction he 1 1 challenges when he filed the Petition. (Resp’t’s Objs. at 2-3.) 2 Respondent points out, correctly, that the burden is on 3 Petitioner to show his entitlement to habeas relief. (Id. at 3 4 (citing, among other cases, Silva v. Woodford, 279 F.3d 825, 835 5 (9th Cir. 2002)).) But that does not relieve Respondent of 6 supporting his motion with actual evidence showing that 7 Petitioner was no longer in custody on the challenged conviction. 8 See Arbors at Desert Hot Springs, LLC v. Fed. Deposit Ins. Corp., 9 No. CV 10-8504-VBF (DTBx), 2011 WL 13217780, at *1 (C.D. Cal. 10 Mar. 24, 2011) (noting that once moving party “presents evidence” 11 to support motion to dismiss for lack of subject-matter 12 jurisdiction, then opposing party must present his own evidence). 13 Respondent presented no such evidence, nor did he cite to any in 14 the record. (See Mot. Dismiss at 2.) He simply asserted that 15 Petitioner was no longer in custody because his prison term had 16 expired. (Id.) In response, Petitioner submitted some evidence 17 tending to show that he still has a parole term left to serve 18 (see generally Pet’r’s Resp. to Suppl. Lodging), which as 19 Respondent acknowledges would mean that he was still “in custody” 20 (see Mot. Dismiss at 2). Had the Magistrate Judge not given 21 Respondent an extra opportunity to submit actual evidence to 22 support his motion, the Court could simply have denied it based 23 on Petitioner’s evidence, slim as it was. 24 Indeed, some of Petitioner’s evidence is ambiguous, as 25 Respondent argues (see Resp’t’s Objs. at 2-3), because it is not 26 clear that it applies to the conviction challenged in the 27 Petition, although it might. But the evidence Respondent finally 28 submitted after being ordered to do so also raises more questions 2 1 than it answers, for the reasons discussed in the R. & R. (See 2 R. & R. at 8-9.) Respondent’s declarant, an acting case-records 3 manager at Petitioner’s prison, provided no explanation for her 4 conclusion that “Petitioner was discharged from parole [on the 5 attempted-murder convictions] on August 15, 2002” (Lodged Doc. 8 6 at 1), and the document she submitted in support does not show 7 that, as explained by the Magistrate Judge (see R. & R. at 8-9). 8 In fact, the provision of it on which Respondent relies expressly 9 refers only to Petitioner’s prison sentence, not his parole term, 10 which might be why Petitioner submitted the same document to 11 support his position. (See Lodged Doc. 8 at 1 (relying on Legal 12 Status Summary’s “discharged” date of “08/15/2002” for “total 13 time imposed” of “9y 0m 0d,” length of Petitioner’s prison 14 sentence, not his parole term); see also Pet’r’s Resp. to Suppl. 15 Lodging, Ex. 1 (same Legal Status Summary).) Such a conclusory 16 assertion does not establish that Petitioner had no parole term 17 left on the relevant convictions when he filed the Petition. See 18 Shakur v. Schriro, 514 F.3d 878, 887 (9th Cir. 2008) (refusing to 19 give weight to prison official’s “conclusory” affidavit 20 describing costs of inmates’ faith-based dietary requests); see 21 also Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) 22 (factual disputes pertinent to subject-matter jurisdiction are 23 viewed in light most favorable to nonmoving party). 24 Accordingly, the Magistrate Judge did not err in 25 recommending that the Court assume jurisdiction because 26 Petitioner might still have a parole term left to serve. See 27 Murguia v. Martel, No. CV 09-3054-ODW(E)., 2009 WL 4980282, at 28 *2-3 (C.D. Cal. Dec. 16, 2009) (finding petitioner “in custody” 3 1 on challenged conviction when he had served prison sentence for 2 it but had not yet served mandatory parole term and remained 3 incarcerated on different conviction). 4 As for Petitioner’s objections to the R. & R., he contends 5 for the first time that he is entitled to equitable tolling 6 because his attorney rendered ineffective assistance during his 7 plea negotiations, his brother’s counsel coerced him into 8 accepting a plea deal by promising to file an appeal arguing his 9 innocence after his brother was released from jail, and he was 10 ignorant of the law. (See Pet’r’s Objs. at 2-5.) But he raised 11 each of these arguments to support his actual-innocence claim 12 (see Opp’n at 3-5, 7), and he now simply reframes them as 13 entitling him to equitable tolling (see Pet’r’s Objs. at 2-5). 14 In liberally construing Petitioner’s filings, however, the 15 Magistrate Judge already addressed whether these claims entitled 16 him to equitable tolling and concluded that they did not. (See 17 R. & R. at 12-13.) Indeed, as the Magistrate Judge noted, by 18 accepting the plea agreement Petitioner got exactly what he 19 bargained for: a more lenient sentence for his brother. (R. & R. 20 at 23); see United States v. Yong, 926 F.3d 582, 591-92 (9th Cir. 21 2019) (finding guilty plea made in exchange for third-party 22 leniency to be voluntary). Petitioner adds nothing in the 23 Objections to change that analysis. 24 Some of Petitioner’s factual assertions in his Objections 25 warrant a response. He claims that during a recess in his 26 preliminary hearing the prosecutor threatened to “lock up” 27 witness Davis if he didn’t testify that Petitioner was the driver 28 of the car involved in the drive-by shooting. (Objs. at 9; see 4 1] also Opp’n at 3 n.2 (Petitioner claiming, without evidentiary Support, that “a couple of months after the preliminary hearing” 3 || someone told him he had “witnessed the pro[]secutor threaten Davis during the recess”).) But he has never presented any 5 | evidence of these alleged threats, and as the Magistrate Judge 6l}noted, Davis’s testimony changed after a recess requested by the 71 defense, not the prosecution, and he was thoroughly cross- 8 examined on why he changed his testimony. (See R. & R. at 7.) 9 Petitioner also objects to the Magistrate Judge’s 10 | observation that his claim that the alleged actual driver is now in prison contradicted his assertion at his 2002 sentencing in 12} another case that the driver was “dead.” (See Objs. at 11 13 | (referring to R. & R. at 21).) He claims the “dead” perpetrator 14 || to whom he referred was as to a different prior crime of which he also allegedly unjustly convicted. {(Id.) Regardless, 16 |} Petitioner still refuses to name the person he claims was the 17 |} actual perpetrator in this case (see id. at 12), substantially 18 | undermining the strength of his “new evidence” of actual 19 || innocence. 20 Having reviewed de novo those portions of the R. & R. to 21 |) which Petitioner objects, the Court agrees with and accepts the 22 || findings and recommendations of the Magistrate Judge. IT 23 || THEREFORE IS ORDERED that Respondent’s motion to dismiss is 24 || granted and that judgment be entered denying the Petition as 25 || untimely and dismissing this action with prejudice. 26 parep. August 20, 2019 Neywit 0 Coit DAVID O. CARTER 28 U.S. DISTRICT JUDGE