8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10
11 MARIO ALBERTO OJEDA, Case No. 2:23-cv-10927-MCS-JC
12 Petitioner, ORDER ACCEPTING FINDINGS, 13 CONCLUSIONS, AND v. RECOMMENDATIONS OF 14 UNITED STATES MAGISTRATE JUDGE 15 PEOPLE OF THE STATE OF CALIFORNIA, 16
17 Respondent.
18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the parties’ submissions in 20 connection with Respondent’s Motion to Dismiss (“Motion”), along with all of the 21 records herein, including the Petition for Writ of Habeas Corpus by a Person in State 22 Custody (“Petition”), the documents lodged in support of the Motion (“Lodged 23 Doc(s).”), the November 29, 2024 Report and Recommendation of United States 24 Magistrate Judge (“Report and Recommendation” or “R&R”), and Petitioner’s 25 Objections to the Report and Recommendation (“Objections”). The Court has further 26 made a de novo determination of those portions of the Report and Recommendation to 27 which objection is made. 1 The Magistrate Judge recommends that the Motion be granted and the Petition and 2 this action be dismissed on the grounds that (1) the Court lacks jurisdiction because 3 Petitioner was not “in custody” when he filed the Petition, and (2) the Petition violates 4 the one-year statute of limitations applicable under the Antiterrorism and Effective Death 5 Penalty Act (“AEDPA”). Petitioner’s Objections dispute the Magistrate Judge’s 6 conclusions as to both of these grounds for dismissal. (See Objections at 2-5). 7 8 First, regarding the Magistrate Judge’s finding that Petitioner was not “in custody” 9 when he filed the Petition on July 21, 2023, Petitioner states vaguely that “to his 10 knowledge, this is not accurate,” and asserts that he “was still on parole” at that time. 11 (Objections at 2; see R&R at 4-5). Although it is true that parole would satisfy the “in 12 custody” requirement of 28 U.S.C. § 2254, see Jones v. Cunningham, 371 U.S. 236, 240- 13 43 (1963), Petitioner still fails to offer any facts to support that he was indeed still on 14 parole on July 21, 2023. In particular, he fails to dispute the records lodged by 15 Respondent, which reflect that Petitioner’s PRCS (postrelease community supervision) 16 was ordered terminated with respect to the conviction at issue (Case No. 19F-07952) as 17 of June 29, 2023. (See Lodged Docs. 11-14). Instead, as before, Petitioner contends, 18 “[i]n any event,” that he was in custody when he filed his state habeas petitions. 19 (Objections at 2). As the Magistrate Judge pointed out (see R&R at 5), that does not 20 suffice. See, e.g., Pajand v. California, 2013 WL 6512947, at *1 (C.D. Cal. Dec. 12, 21 2013) (court lacked jurisdiction because petitioner was not in custody when he filed his 22 federal habeas petition, regardless of whether he was still on parole when he filed his 23 state habeas petition (citing Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Bailey v. 24 Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (emphasis in original))). 25 26 Second, Petitioner disputes the Magistrate Judge’s determination that there was no 27 showing of fundamental unfairness here that could overcome this jurisdictional bar, even 1 Petitioner contends that he has demonstrated fundamental unfairness based on multiple 2 instances of constitutionally ineffective assistance of trial counsel. (Objections at 2-3). 3 Regardless of the merits of Petitioner’s claims, however, it remains that there is no basis 4 for this Court to exercise jurisdiction over the Petition where Petitioner was not “in 5 custody” when he filed it. 6 7 Third, Petitioner contends that the Petition qualifies for an exception to AEDPA’s 8 statute of limitations based on Martinez v. Ryan, 566 U.S. 1 (2012). (Objections at 3-4). 9 Martinez held that “[i]nadequate assistance of counsel at initial-review collateral 10 proceedings may establish cause for a prisoner’s procedural default of a claim of 11 ineffective assistance at trial.” Martinez 566 U.S. at 9 (emphasis added). As the 12 Magistrate Judge already pointed out (see R&R at 9), the Martinez holding is inapposite 13 here, where the issue is the timeliness of the Petition rather than procedural default. See 14 Shinn v. Ramirez, 596 U.S. 366, 387 (2022) (“Martinez foreclosed any extension of its 15 holding beyond the ‘narrow exception’ to procedural default at issue in that case.”); 16 Moody v. Lumpkin, 70 F.4th 884, 892 (5th Cir. 2023) (“Martinez established a narrow, 17 equitable exception to procedural default; it has no applicability to the statutory 18 limitations period prescribed by AEDPA.”). 19 20 Fourth, Petitioner argues that equitable tolling is warranted here because his trial 21 counsel did not give him his case file until April 2022 and then failed to respond to 22 Petitioner’s May 2022 request for additional case documents. (Objections at 4-5 & n.3). 23 For equitable tolling, Petitioner bears the burden of showing “(1) that he has been 24 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 25 way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Magistrate Judge concluded 26 that Petitioner failed to show either that he was diligent in seeking the missing 27 documents and pursuing his rights, or that the lack of such documents amounted to an 1 dispute these determinations, to no avail. Petitioner asserts, for example, that he needed 2 his case documents “because he had no specific recollection of the exact constitutional 3 violations, the evidence and citations from the case file to make a good showing” 4 (Objections at 4 n.3), but he still fails to explain this or point to any particular document 5 that he needed to present any particular claim in the Petition. See, e.g., Chaffer v. 6 Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (where petitioner could not point to 7 specific instance where he needed particular document to prepare federal habeas petition 8 and could not procure that document when needed, claim of external impediment was 9 insufficient to justify equitable tolling). Petitioner also contends that his diligence in 10 seeking his missing documents is evident “if you follow his timeline and version of 11 events.” (Objections at 4 n.3). Yet, the Magistrate Judge reviewed that alleged timeline 12 and correctly found, nonetheless, that Petitioner had failed to explain why, having been 13 released from prison in September 2021, he made no attempt to obtain his case file until 14 after February 26, 2022. (R&R at 11). Petitioner’s Objections offer nothing on that 15 point. 16 17 Fifth, Petitioner asserts that he is “actually innocent” and “has presented reliable 18 evidence casting doubt on his conviction which permits this Court to consider his 19 claims.” (Objections at 4 n.3). As the Magistrate Judge noted (see R&R at 12), a claim 20 of actual innocence cannot overcome the timeliness bar unless it is supported by new, 21 reliable evidence, which is absent here. See McQuiggin v. Perkins, 569 U.S. 383, 386 22 (2013). In addition, Petitioner suggests that the Court should consider his claims 23 because the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) 24 remanded the Petition to this Court and would not have done so if the claims were 25 untimely.
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8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10
11 MARIO ALBERTO OJEDA, Case No. 2:23-cv-10927-MCS-JC
12 Petitioner, ORDER ACCEPTING FINDINGS, 13 CONCLUSIONS, AND v. RECOMMENDATIONS OF 14 UNITED STATES MAGISTRATE JUDGE 15 PEOPLE OF THE STATE OF CALIFORNIA, 16
17 Respondent.
18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the parties’ submissions in 20 connection with Respondent’s Motion to Dismiss (“Motion”), along with all of the 21 records herein, including the Petition for Writ of Habeas Corpus by a Person in State 22 Custody (“Petition”), the documents lodged in support of the Motion (“Lodged 23 Doc(s).”), the November 29, 2024 Report and Recommendation of United States 24 Magistrate Judge (“Report and Recommendation” or “R&R”), and Petitioner’s 25 Objections to the Report and Recommendation (“Objections”). The Court has further 26 made a de novo determination of those portions of the Report and Recommendation to 27 which objection is made. 1 The Magistrate Judge recommends that the Motion be granted and the Petition and 2 this action be dismissed on the grounds that (1) the Court lacks jurisdiction because 3 Petitioner was not “in custody” when he filed the Petition, and (2) the Petition violates 4 the one-year statute of limitations applicable under the Antiterrorism and Effective Death 5 Penalty Act (“AEDPA”). Petitioner’s Objections dispute the Magistrate Judge’s 6 conclusions as to both of these grounds for dismissal. (See Objections at 2-5). 7 8 First, regarding the Magistrate Judge’s finding that Petitioner was not “in custody” 9 when he filed the Petition on July 21, 2023, Petitioner states vaguely that “to his 10 knowledge, this is not accurate,” and asserts that he “was still on parole” at that time. 11 (Objections at 2; see R&R at 4-5). Although it is true that parole would satisfy the “in 12 custody” requirement of 28 U.S.C. § 2254, see Jones v. Cunningham, 371 U.S. 236, 240- 13 43 (1963), Petitioner still fails to offer any facts to support that he was indeed still on 14 parole on July 21, 2023. In particular, he fails to dispute the records lodged by 15 Respondent, which reflect that Petitioner’s PRCS (postrelease community supervision) 16 was ordered terminated with respect to the conviction at issue (Case No. 19F-07952) as 17 of June 29, 2023. (See Lodged Docs. 11-14). Instead, as before, Petitioner contends, 18 “[i]n any event,” that he was in custody when he filed his state habeas petitions. 19 (Objections at 2). As the Magistrate Judge pointed out (see R&R at 5), that does not 20 suffice. See, e.g., Pajand v. California, 2013 WL 6512947, at *1 (C.D. Cal. Dec. 12, 21 2013) (court lacked jurisdiction because petitioner was not in custody when he filed his 22 federal habeas petition, regardless of whether he was still on parole when he filed his 23 state habeas petition (citing Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Bailey v. 24 Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (emphasis in original))). 25 26 Second, Petitioner disputes the Magistrate Judge’s determination that there was no 27 showing of fundamental unfairness here that could overcome this jurisdictional bar, even 1 Petitioner contends that he has demonstrated fundamental unfairness based on multiple 2 instances of constitutionally ineffective assistance of trial counsel. (Objections at 2-3). 3 Regardless of the merits of Petitioner’s claims, however, it remains that there is no basis 4 for this Court to exercise jurisdiction over the Petition where Petitioner was not “in 5 custody” when he filed it. 6 7 Third, Petitioner contends that the Petition qualifies for an exception to AEDPA’s 8 statute of limitations based on Martinez v. Ryan, 566 U.S. 1 (2012). (Objections at 3-4). 9 Martinez held that “[i]nadequate assistance of counsel at initial-review collateral 10 proceedings may establish cause for a prisoner’s procedural default of a claim of 11 ineffective assistance at trial.” Martinez 566 U.S. at 9 (emphasis added). As the 12 Magistrate Judge already pointed out (see R&R at 9), the Martinez holding is inapposite 13 here, where the issue is the timeliness of the Petition rather than procedural default. See 14 Shinn v. Ramirez, 596 U.S. 366, 387 (2022) (“Martinez foreclosed any extension of its 15 holding beyond the ‘narrow exception’ to procedural default at issue in that case.”); 16 Moody v. Lumpkin, 70 F.4th 884, 892 (5th Cir. 2023) (“Martinez established a narrow, 17 equitable exception to procedural default; it has no applicability to the statutory 18 limitations period prescribed by AEDPA.”). 19 20 Fourth, Petitioner argues that equitable tolling is warranted here because his trial 21 counsel did not give him his case file until April 2022 and then failed to respond to 22 Petitioner’s May 2022 request for additional case documents. (Objections at 4-5 & n.3). 23 For equitable tolling, Petitioner bears the burden of showing “(1) that he has been 24 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 25 way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Magistrate Judge concluded 26 that Petitioner failed to show either that he was diligent in seeking the missing 27 documents and pursuing his rights, or that the lack of such documents amounted to an 1 dispute these determinations, to no avail. Petitioner asserts, for example, that he needed 2 his case documents “because he had no specific recollection of the exact constitutional 3 violations, the evidence and citations from the case file to make a good showing” 4 (Objections at 4 n.3), but he still fails to explain this or point to any particular document 5 that he needed to present any particular claim in the Petition. See, e.g., Chaffer v. 6 Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (where petitioner could not point to 7 specific instance where he needed particular document to prepare federal habeas petition 8 and could not procure that document when needed, claim of external impediment was 9 insufficient to justify equitable tolling). Petitioner also contends that his diligence in 10 seeking his missing documents is evident “if you follow his timeline and version of 11 events.” (Objections at 4 n.3). Yet, the Magistrate Judge reviewed that alleged timeline 12 and correctly found, nonetheless, that Petitioner had failed to explain why, having been 13 released from prison in September 2021, he made no attempt to obtain his case file until 14 after February 26, 2022. (R&R at 11). Petitioner’s Objections offer nothing on that 15 point. 16 17 Fifth, Petitioner asserts that he is “actually innocent” and “has presented reliable 18 evidence casting doubt on his conviction which permits this Court to consider his 19 claims.” (Objections at 4 n.3). As the Magistrate Judge noted (see R&R at 12), a claim 20 of actual innocence cannot overcome the timeliness bar unless it is supported by new, 21 reliable evidence, which is absent here. See McQuiggin v. Perkins, 569 U.S. 383, 386 22 (2013). In addition, Petitioner suggests that the Court should consider his claims 23 because the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) 24 remanded the Petition to this Court and would not have done so if the claims were 25 untimely. (See Objections at 4 n.3). However, the Ninth Circuit transferred the Petition 26 to this Court only because it had been erroneously filed in the Ninth Circuit along with 27 an application for authorization to file a second or successive Section 2254 habeas 1 previously filed a Section 2254 petition challenging the state judgment at issue. (See 2 Docket No. 1 at 1-6; Docket No. 3). In doing so, the Ninth Circuit made it clear that it 3 “express[ed] no opinion as to the merits of [Petitioner’s] claims or whether the 4 procedural requirements of 28 U.S.C. §§ 2244(d) and 2254 are satisfied.” (Docket No. 3 5 at 1). 6 7 Petitioner thus fails to undermine the Magistrate Judge’s conclusions in any 8 respect. Accordingly, the Court overrules the Objections and agrees with, approves, and 9 accepts the Report and Recommendation. 10 11 THE COURT HEREBY ORDERS: (1) Respondent’s Motion to Dismiss the 12 Petition is granted and the Petition and this action are dismissed; and (2) Judgment shall 13 be entered accordingly. 14 15 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 16 Judgment herein on Petitioner and counsel for Respondent. 17 18 IT IS SO ORDERED. 19 20 DATED: February 4, 2025 21 22 ________________________________________ HONORABLE MARK C. SCARSI 23 UNITED STATES DISTRICT JUDGE 24 25 26 27