Joseph C. Moore v. WM Pollard

• Court: District Court, C.D. California
• Decided: May 19, 2022
• Docket: 2:19-cv-07771
• Status: Unknown

Opinion

Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 1 of 9 Page ID #:1482

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSEPH C. MOORE, ) Case No. CV 19-7771-MCS (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE W.M. POLLARD, Warden, ) 14 ) Respondent. ) 15 ) 16 17 The Court has reviewed the Petition, motion for leave to 18 amend, Proposed First Amended Petition, records on file, and 19 Report and Recommendation of U.S. Magistrate Judge, which 20 recommends that Petitioner’s motion for leave to amend be denied 21 and judgment be entered denying the Petition and dismissing this 22 action with prejudice. See 28 U.S.C. § 636(b)(1). Petitioner 23 filed objections to the R. & R. on April 11, 2022; Respondent did 24 not reply. Between the filing of the R. & R. and of his 25 objections, Petitioner twice lodged various state-court records. 26 Most of Petitioner’s objections raise arguments that were 27 convincingly rejected in the R. & R. For example, he continues 28 to maintain that relief is warranted because the search-warrant Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 2 of 9 Page ID #:1483

1 return, which he did not even attempt to obtain until over a year 2 after his conviction became final (see R. & R. at 21), proves 3 that the investigating officers violated his Fourth Amendment 4 rights and the prosecutor committed misconduct (see Objs. at 5-6, 5 20). But as explained in the R. & R. (see R. & R. at 21), those 6 claims are untimely because he did not exercise reasonable 7 diligence in procuring the warrant return. He advances no 8 contrary argument. Although he argues that the claims are 9 nevertheless cognizable because they challenge the same 10 conviction and sentence as at issue in his original Petition (see 11 Objs. at 7), he is incorrect. (See R. & R. at 22 (citing Mayle 12 v. Felix, 545 U.S. 644, 662-64 (2005) (explaining that new claim 13 does not “relate back” to filing of exhausted petition simply 14 because it arises from “the same trial, conviction, or 15 sentence”)).) 16 A few of Petitioner’s objections warrant discussion, 17 however. He asserts that he has obtained new evidence — 18 specifically, the transcripts of his pretrial suppression and 19 other motion hearings — that prove he did not have a full and 20 fair opportunity to litigate any Fourth Amendment claims in state 21 court. (See Objs. at 3, 17); Stone v. Powell, 428 U.S. 465, 494 22 (1976) (barring consideration of Fourth Amendment claims on 23 habeas review unless petitioner didn’t have “full and fair” 24 opportunity to litigate issue in state court). In particular, he 25 maintains that the suppression-hearing transcript reveals that 26 the investigating detective misled the judge who issued the 27 search warrant by omitting from the warrant application that 28 officers had arrested him before seeking the warrant. (See, 2 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 3 of 9 Page ID #:1484

1 e.g., id. at 3, 20-21.) He further alleges that he was unable to 2 obtain any of the transcripts until March 2022 despite repeated 3 earlier attempts. (See id. at 17; Pet’r’s Lodging in Support of 4 Objs. at 2-9.) 5 These objections are meritless. As an initial matter, the 6 hearing transcripts do not constitute newly discovered evidence. 7 On the contrary, they were necessarily part of the trial record 8 and therefore would have been available to Petitioner long before 9 he claims to have obtained them. See Cal. R. Ct. 8.610(a)(2)(H), 10 (K), (N) (stating that record on appeal “must include a 11 reporter’s transcript containing” “oral proceedings on any motion 12 under Penal Code section 1538.5 denied in whole or in part” as 13 well as other “oral proceedings on motions” and “oral opinion of 14 the court”). Moreover, one of the hearing transcripts Petitioner 15 recently lodged shows him being handed a copy of the suppression- 16 hearing transcript. (See Pet’r’s Lodged Doc. Supporting Claims, 17 Rep.’s Tr. at D-19 to -20.) To be sure, evidence suggests that 18 he lost the transcripts at some point and therefore began 19 requesting new copies of them sometime around November 2020. 20 (See, e.g., Pet’r’s Lodging in Support of Objs. at 4.) But he 21 doesn’t explain when they went missing or why he evidently took 22 no action to obtain copies during the 17-month period between 23 June 19, 2019 — the day his conviction became final (see R. & R. 24 at 16) — and November 2020.1 25 26 1 For this reason, any contention that Petitioner is entitled to equitable tolling of the limitation period based on his efforts 27 to obtain the suppression-hearing transcript (see Objs. at 12) is meritless. Compare Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 28 2003) (as amended) (holding that equitable tolling may be 3 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 4 of 9 Page ID #:1485

1 Putting that aside, the facts stemming from the hearings are 2 hardly “new evidence.” Petitioner was necessarily familiar with 3 the testimony and arguments at the hearings because he was not 4 only present but represented himself at them. (See Pet’r’s 5 Lodged Doc. Supporting Claims, Rep.’s Tr. at B-1, C-1, D-1.) And 6 indeed, he demonstrated his familiarity with what happened at the 7 suppression hearing by recounting those events in his Proposed 8 First Amended Petition, before he recently got a new copy of the 9 transcript. (See Proposed First Am. Pet. at 10, 14 (stating that 10 at suppression hearing prosecutor discussed seizure of 11 Petitioner’s cell phone and that it was being “forensically 12 analyzed” when hearing occurred); see also Pet’r’s Lodged Doc. 13 Supporting Claims, Rep.’s Tr. at B-6 (prosecutor stating that she 14 could not make Petitioner’s cell phone available to his 15 investigator because it was being “forensically searched”));2 16 appropriate when attorney ignored petitioner’s requests to return 17 files for more than year and neither filed federal habeas petition 18 nor returned files until after limitation period had run), with Bertran v. U.S. Dist. Ct., No. CV 19-10850-JAK (PD), 2021 WL 19 1760056, at *8 (C.D. Cal. Mar. 12, 2021) (finding no tolling warranted based on petitioner’s lack of access to preliminary- 20 hearing transcript when petitioner failed to request it for over two years after conviction became final), accepted by 2021 WL 21 1753626 (C.D. Cal. May 4, 2021); Bautista v. Raymond, No. CV 22 17-6004-RGK (FFM), 2018 WL 5974491, at *4 (C.D. Cal. May 30, 2018) (rejecting equitable-tolling argument based on counsel’s alleged 23 failure to deliver record when petitioner “provide[d] no documentary evidence suggesting [] that he exercised any sort of 24 diligence in procuring” record during relevant period), accepted by 2018 WL 4961601 (C.D. Cal. Oct. 15, 2018). 25 26 2 Without citing any supporting evidence, Petitioner argues that the prosecutor “never gave those numbers and contacts [from 27 the cell phone] over to the defendant.” (Objs. at 3.) But at a later hearing, after Petitioner had agreed to once again be 28 represented by counsel, the prosecutor indicated that she had 4 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 5 of 9 Page ID #:1486

1 Bertran v. U.S. Dist. Ct., No. CV 19-10850-JAK (PD), 2021 WL 2 1760056, at *8 (C.D. Cal. Mar. 12, 2021) (petitioner’s lack of 3 access to preliminary-hearing transcript did not warrant tolling 4 of limitation period when petitioner was at hearing and 5 demonstrated his memory of testimony adduced during it), accepted 6 by 2021 WL 1753626 (C.D. Cal. May 4, 2021). In short, he was 7 aware of the facts from the hearings and therefore cannot show 8 that they constitute new evidence. 9 Those facts included the testimony at the suppression 10 hearing concerning the sequence of his arrest and the search of 11 his residence. (See Objs. at 20-21); Ortiz-Sandoval v. Gomez, 81 12 F.3d 891, 899 (9th Cir. 1996) (as amended) (explaining that 13 “[t]he relevant inquiry [for purposes of Stone] is whether 14 petitioner had the opportunity to litigate his claim, not whether 15 he did in fact do so”). Indeed, when asked at the suppression 16 hearing to identify the basis for his Fourth Amendment challenge, 17 Petitioner replied, “I’m challenging the fact that there was not 18 a warrant at the time that the police engaged me at my home.” 19 (Pet’r’s Lodged Doc. Supporting Claims, Rep.’s Tr. at C-3.) 20 What’s more, the detective who applied for the search warrant 21 testified without contradiction that Petitioner was arrested 22 before the warrant was issued. (Id. at C-30; see also id. at C- 23 24 received the evidence from the “forensic search of the defendant’s 25 phone” and would be turning it over to counsel. (See Pet’r’s 26 Lodged Doc. Supporting Claims, Rep.’s Tr. at E-2 to -3 (prosecutor discussing phone evidence) & E-5 (Petitioner asking to have standby 27 counsel take over and court granting request).) Thus, that Petitioner himself didn’t receive the cell-phone evidence doesn’t 28 mean it wasn’t produced to the defense. 5 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 6 of 9 Page ID #:1487

1 32, C-38 to -40, C-72, D-3.)3 Petitioner’s contention that that 2 detective committed “perjury” by testifying that “officers on 3 scene never entered the Petitioner’s home” before the warrant was 4 issued is meritless. (Objs. at 4.) No testimony adduced at the 5 hearing — not even Petitioner’s (see Pet’r’s Lodged Doc. 6 Supporting Claims, Rep.’s Tr. at C-74 to -86) — supports his 7 contention. The detective’s testimony that “photographs were 8 taken of the residence in its state as we found it prior to the 9 search warrant being served” in context clearly meant simply that 10 the officers took photos of the scene immediately before and 11 after conducting the search, as they always did (see id. at C-42 12 to -43), not that she entered the home before the warrant 13 arrived. 14 But putting all that aside, the only evidence Petitioner 15 cites to show that the detective perjured herself — namely, an 16 exhibit that he introduced and testimony elicited in response to 17 his own questioning — is evidence from the hearing itself. (See 18 Objs. at 4.) Thus, he clearly had a full and fair opportunity 19 under Stone to litigate that issue. 20 Petitioner reiterates his arguments that his alleged lack of 21 access to the warrant return somehow hindered his ability to 22 prosecute his suppression motion. (See Objs. at 15-16.) But he 23 never explains how. Even if the warrant return listed his seized 24 3 Of course, the question of whether there was probable cause 25 for Petitioner’s arrest – which the court of appeal noted he did 26 not raise (see Resp’t’s Lodged Doc. 2 at 12) — is distinct from whether the warrant authorizing the police to search his home was 27 valid. Petitioner provides no credible reason to conclude that the timing or circumstances of his arrest invalidates the warrant, and 28 none is apparent to the Court. 6 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 7 of 9 Page ID #:1488

1 cell phone and it wasn’t specifically mentioned in the warrant 2 itself, he clearly knew the phone had been seized because he 3 repeatedly referenced that fact during the pretrial hearings. 4 And the detective’s apparent misstatement about which judge 5 signed the warrant return wasn’t “perjury” (Objs. at 5-6, 20) 6 because that fact was immaterial. Finally, the transcripts 7 Petitioner recently lodged show that before trial he had a list 8 of “all the items that was [sic] seized from [his] residence” 9 (Pet’r’s Lodged Doc. Supporting Claims, Rep.’s Tr. at C-82) — if 10 not the warrant return itself, a document serving the same 11 purpose. He has never claimed that that document was somehow 12 materially different from the return. Thus, Petitioner had a 13 full and fair opportunity at the suppression hearing to challenge 14 the search despite allegedly not yet having seen the warrant 15 return, and that claim is barred by Stone. 16 Next, Petitioner suggests that he is entitled to equitable 17 tolling of the limitation period. (See Objs. at 12.) But the 18 only claim he identifies in this portion of the objections is his 19 ineffective-assistance claim concerning appellate counsel’s 20 performance. (See id.) Specifically, he asserts that had 21 appellate counsel “discovered discrepancies with [Petitioner’s 22 trial counsel] in regards to the suppression issue and presented 23 on appeal[,] it would have been discovered by her and exhausted 24 to be presented on § 2254 fedreal [sic] habeas corpus.” (Id.) 25 To the extent Petitioner believes this allegation entitles him to 26 equitable tolling, it is unclear why. He was undoubtedly already 27 aware that his appellate counsel didn’t challenge trial counsel’s 28 failure to renew the suppression motion — indeed, he raised that 7 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 8 of 9 Page ID #:1489

1 challenge himself in a habeas petition he filed in conjunction 2 with his direct appeal. (See Resp’t’s Lodged Doc. 2 at 19-20.) 3 In any event, the underlying claim — that appellate counsel erred 4 in neglecting to assert an ineffective-assistance claim based on 5 trial counsel’s failure to renew the suppression motion (see 6 Objs. at 13, 14) — is meritless because, as related in the R. & 7 R., there was no basis to renew the motion (see R. & R. at 51). 8 Finally, Petitioner claims for the first time that his 9 conviction violates the Eighth Amendment because it was obtained 10 “as a result of all of the illegal acts of the police and 11 prosecuting office and the erroneous unreasonable applications 12 applied in this case contrary to federal law.” (Objs. at 22.) 13 Petitioner may not assert a new claim for the first time in his 14 objections. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 15 (9th Cir. 2008) (holding that reply to answer was not proper 16 pleading to raise additional grounds for relief or arguments). 17 Although the Court has discretion to consider the claim, see id.; 18 Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002), it declines to 19 because the claim is unexhausted and at bottom is a disguised 20 Fourth Amendment challenge barred by Stone. Indeed, the only 21 “illegal acts of the police and prosecuting office” to which he 22 refers are those concerning the search of his home and seizure of 23 his property. (See Objs. at 3-6; see also Proposed First Am. 24 Pet. at 7-9.) And to the extent his Eighth Amendment claim is 25 premised on the warrant return — as are most of the claims in the 26 Proposed First Amended Petition (see R. & R. at 23; Suppl. Reply 27 at 7) — it is time barred (see R. & R. at 16-27). Accordingly, 28 there is no reason to allow him to assert a new Eighth Amendment 8 Case 2:19-cv-07771-MCS-JPR Document 58 Filed 05/19/22 Page 9 of 9 Page ID #:1490

1 claim at this late stage. 2 Having reviewed de novo those portions of the R. & R. to 3 which Petitioner objects, see 28 U.S.C. § 636(b)(1)(C), the Court 4 accepts the findings and recommendations of the Magistrate Judge. 5 It THEREFORE IS ORDERED that Petitioner’s motion for leave to 6 amend is denied and that judgment be entered denying the Petition 7 and dismissing this action with prejudice. 8 9 DATED: May 19, 2022 MARK C. SCARSI 10 U.S. DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9