1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RAUL JOE ALDRETE, ) Case No. CV 18-10800-JPR 11 ) Petitioner, ) MEMORANDUM DECISION AND ORDER 12 ) DENYING PETITION AND DISMISSING v. ) ACTION WITH PREJUDICE 13 ) CHRISTIAN PFEIFFER, Warden, ) 14 ) Respondent. ) 15 ) ) 16 17 PROCEEDINGS 18 On December 12, 2018, Petitioner, proceeding pro se, 19 constructively filed a Petition for Writ of Habeas Corpus by a 20 Person in State Custody, raising a single claim: his 2000 21 conviction for discharging a firearm was “not a strikable 22 offen[s]e.” (Pet. at 3; see also id. at 1-2.)1 Respondent moved 23 to dismiss on June 20, 2019, and Petitioner opposed on March 20, 24 2020. Respondent did not file a reply. The parties consented to 25 26 1The Ninth Circuit transferred the Petition to this Court 27 after denying as unnecessary Petitioner’s application to file a second or successive petition in that he had not filed a prior 28 petition pertaining to the 2000 conviction. 1 1 the jurisdiction of the undersigned under 28 U.S.C. § 636(c)(1). 2 For the reasons discussed below, the Petition is denied as 3 untimely and because the Court lacks subject-matter jurisdiction, 4 and this action is dismissed with prejudice. 5 BACKGROUND 6 On August 17, 2000, Petitioner pleaded guilty in Los Angeles 7 County Superior Court to discharging a firearm with gross 8 negligence under former California Penal Code section 246.3 and 9 was sentenced to five years probation with one year in county 10 jail. (See Lodged Doc. 1 at 10; Pet. at 1-2; Opp’n at 3.) 11 Petitioner did not appeal. See Cal. App. Cts. Case Info., 12 http://appellatecases.courtinfo.ca.gov/ (search for “Aldrete” 13 with “Raul” in Second App. Dist. revealing no appeals filed after 14 1994) (last visited July 23, 2020); see also Opp’n at 3 15 (“[P]etitioner has never filed any appeal on this matter.”). 16 Subsequently, in 2013, a San Bernardino County jury 17 convicted him of assault with a firearm, willful infliction of 18 corporal injury on a cohabitant, and felon in possession of a 19 firearm. (Lodged Doc. 1 at 2.) The trial court found true that 20 Petitioner had been convicted of two prior strikes, including the 21 2000 discharging-a-firearm conviction. (Id. at 2, 10.) He was 22 sentenced to 37 years to life in state prison. (Id. at 2.) The 23 California Court of Appeal affirmed the judgment on June 19, 24 2015. (Id. at 1-2.) Petitioner did not file a petition for 25 review. See Cal. App. Cts. Case Info., http://appellatecases. 26 courtinfo.ca.gov/ (search for “Aldrete” with “Raul” in supreme 27 court revealing no petition for review filed after 1995) (last 28 visited July 23, 2020). 2 1 PETITIONER’S CLAIM 2 Petitioner’s 2000 conviction for discharging a firearm in a 3 grossly negligent manner should not count as a strike. (Pet. at 4 1, 3.) 5 DISCUSSION 6 I. The Court Lacks Subject-Matter Jurisdiction 7 Under § 2254(a), a federal court “shall entertain an 8 application for a writ of habeas corpus in behalf of a person in 9 custody pursuant to the judgment of a State court only on the 10 ground that he is in custody in violation of the Constitution or 11 laws or treaties of the United States.” Section 2254(a)’s 12 custody requirement “has been interpreted to mean that federal 13 courts lack jurisdiction over habeas corpus petitions unless the 14 petitioner is ‘under the conviction or sentence under attack at 15 the time his petition is filed.’” Bailey v. Hill, 599 F.3d 976, 16 978-79 (9th Cir. 2010) (citation omitted); see also Maleng v. 17 Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (interpreting 18 § 2254(a) as “requiring that the habeas petitioner be ‘in 19 custody’ under the conviction or sentence under attack at the 20 time his petition is filed”). Because the custody requirement is 21 jurisdictional, “it is the first question [a court] must 22 consider.” Bailey, 599 F.3d at 978 (citation omitted). 23 In August 2000, Petitioner was apparently sentenced on the 24 discharging-a-firearm conviction to five years probation with one 25 year in county jail. (Lodged Doc. 1 at 10-11; Pet. at 1-2.) His 26 probation, and therefore his custody, see Chaker v. Crogan, 428 27 F.3d 1215, 1219 (9th Cir. 2005), likely terminated five or six 28 years later, in August 2005 or 2006. But even if Petitioner 3 1 violated his probation shortly before its anticipated completion 2 and was sentenced to the upper term of three years, see Cal. 3 Penal Code §§ 18 & 246.3 (2000), his custody would have ended in 4 August 2008 or 2009. On December 12, 2018, then, the 5 constructive filing date of the Petition, he wouldn’t have been 6 in custody on the conviction he challenges for about a decade or 7 more. Because he was not “‘in custody’ under the conviction or 8 sentence under attack at the time his petition [wa]s filed,” this 9 Court lacks subject-matter jurisdiction, and the Petition must be 10 dismissed with prejudice. Maleng, 490 U.S. at 490; see Hays v. 11 Tews, No. CV 15-4279-DMG (KES), 2015 WL 13123193, at *2, *6-7 12 (C.D. Cal. Nov. 2, 2015) (dismissing habeas petition with 13 prejudice for lack of subject-matter jurisdiction because 14 petitioner was no longer in custody on conviction he challenged), 15 accepted by 2017 WL 962754 (C.D. Cal. Mar. 13, 2017).2 16 II. The Petition Is Untimely 17 Even had Petitioner been in custody when he filed the 18 Petition, it would still have to be dismissed because it is 19 untimely by nearly two decades. 20 21 2To the extent Petitioner challenges his 2013 sentence, 22 thereby collaterally attacking the 2000 conviction, he may not do so. “[O]nce a state conviction is no longer open to direct or 23 collateral attack in its own right” because the petitioner “failed to pursue” relief when it was available or was 24 unsuccessful in doing so, “the conviction may be regarded as conclusively valid” and federal courts are without jurisdiction 25 to review it on habeas. Lackawanna Cnty. Dist. Att’y v. Coss, 26 532 U.S. 394, 403 (2001). If an expired conviction is “later used to enhance a criminal sentence,” a petitioner “generally may 27 not challenge the enhanced sentence” through a § 2254 petition “on the ground that the prior conviction was unconstitutionally 28 obtained.” Id. at 403-04. 4 1 A. Applicable Law 2 The Antiterrorism and Effective Death Penalty Act sets forth 3 a one-year limitation period for filing a federal habeas petition 4 and specifies that the period runs from the latest of the 5 following dates: 6 (A) the date on which the judgment became final by the 7 conclusion of direct review or the expiration of the time 8 for seeking such review; 9 (B) the date on which the impediment to filing an 10 application created by State action in violation of the 11 Constitution or laws of the United States is removed, if 12 the applicant was prevented from filing by such State 13 action; 14 (C) the date on which the constitutional right asserted 15 was initially recognized by the Supreme Court, if the 16 right has been newly recognized by the Supreme Court and 17 made retroactively applicable to cases on collateral 18 review; or 19 (D) the date on which the factual predicate of the claim 20 or claims presented could have been discovered through 21 the exercise of due diligence. 22 § 2244(d)(1). AEDPA includes a statutory tolling provision that 23 suspends the limitation period for the time during which a 24 properly filed application for postconviction or other collateral 25 review is pending in state court. See § 2244(d)(2); Waldrip v. 26 Hall, 548 F.3d 729, 734 (9th Cir. 2008).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RAUL JOE ALDRETE, ) Case No. CV 18-10800-JPR 11 ) Petitioner, ) MEMORANDUM DECISION AND ORDER 12 ) DENYING PETITION AND DISMISSING v. ) ACTION WITH PREJUDICE 13 ) CHRISTIAN PFEIFFER, Warden, ) 14 ) Respondent. ) 15 ) ) 16 17 PROCEEDINGS 18 On December 12, 2018, Petitioner, proceeding pro se, 19 constructively filed a Petition for Writ of Habeas Corpus by a 20 Person in State Custody, raising a single claim: his 2000 21 conviction for discharging a firearm was “not a strikable 22 offen[s]e.” (Pet. at 3; see also id. at 1-2.)1 Respondent moved 23 to dismiss on June 20, 2019, and Petitioner opposed on March 20, 24 2020. Respondent did not file a reply. The parties consented to 25 26 1The Ninth Circuit transferred the Petition to this Court 27 after denying as unnecessary Petitioner’s application to file a second or successive petition in that he had not filed a prior 28 petition pertaining to the 2000 conviction. 1 1 the jurisdiction of the undersigned under 28 U.S.C. § 636(c)(1). 2 For the reasons discussed below, the Petition is denied as 3 untimely and because the Court lacks subject-matter jurisdiction, 4 and this action is dismissed with prejudice. 5 BACKGROUND 6 On August 17, 2000, Petitioner pleaded guilty in Los Angeles 7 County Superior Court to discharging a firearm with gross 8 negligence under former California Penal Code section 246.3 and 9 was sentenced to five years probation with one year in county 10 jail. (See Lodged Doc. 1 at 10; Pet. at 1-2; Opp’n at 3.) 11 Petitioner did not appeal. See Cal. App. Cts. Case Info., 12 http://appellatecases.courtinfo.ca.gov/ (search for “Aldrete” 13 with “Raul” in Second App. Dist. revealing no appeals filed after 14 1994) (last visited July 23, 2020); see also Opp’n at 3 15 (“[P]etitioner has never filed any appeal on this matter.”). 16 Subsequently, in 2013, a San Bernardino County jury 17 convicted him of assault with a firearm, willful infliction of 18 corporal injury on a cohabitant, and felon in possession of a 19 firearm. (Lodged Doc. 1 at 2.) The trial court found true that 20 Petitioner had been convicted of two prior strikes, including the 21 2000 discharging-a-firearm conviction. (Id. at 2, 10.) He was 22 sentenced to 37 years to life in state prison. (Id. at 2.) The 23 California Court of Appeal affirmed the judgment on June 19, 24 2015. (Id. at 1-2.) Petitioner did not file a petition for 25 review. See Cal. App. Cts. Case Info., http://appellatecases. 26 courtinfo.ca.gov/ (search for “Aldrete” with “Raul” in supreme 27 court revealing no petition for review filed after 1995) (last 28 visited July 23, 2020). 2 1 PETITIONER’S CLAIM 2 Petitioner’s 2000 conviction for discharging a firearm in a 3 grossly negligent manner should not count as a strike. (Pet. at 4 1, 3.) 5 DISCUSSION 6 I. The Court Lacks Subject-Matter Jurisdiction 7 Under § 2254(a), a federal court “shall entertain an 8 application for a writ of habeas corpus in behalf of a person in 9 custody pursuant to the judgment of a State court only on the 10 ground that he is in custody in violation of the Constitution or 11 laws or treaties of the United States.” Section 2254(a)’s 12 custody requirement “has been interpreted to mean that federal 13 courts lack jurisdiction over habeas corpus petitions unless the 14 petitioner is ‘under the conviction or sentence under attack at 15 the time his petition is filed.’” Bailey v. Hill, 599 F.3d 976, 16 978-79 (9th Cir. 2010) (citation omitted); see also Maleng v. 17 Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (interpreting 18 § 2254(a) as “requiring that the habeas petitioner be ‘in 19 custody’ under the conviction or sentence under attack at the 20 time his petition is filed”). Because the custody requirement is 21 jurisdictional, “it is the first question [a court] must 22 consider.” Bailey, 599 F.3d at 978 (citation omitted). 23 In August 2000, Petitioner was apparently sentenced on the 24 discharging-a-firearm conviction to five years probation with one 25 year in county jail. (Lodged Doc. 1 at 10-11; Pet. at 1-2.) His 26 probation, and therefore his custody, see Chaker v. Crogan, 428 27 F.3d 1215, 1219 (9th Cir. 2005), likely terminated five or six 28 years later, in August 2005 or 2006. But even if Petitioner 3 1 violated his probation shortly before its anticipated completion 2 and was sentenced to the upper term of three years, see Cal. 3 Penal Code §§ 18 & 246.3 (2000), his custody would have ended in 4 August 2008 or 2009. On December 12, 2018, then, the 5 constructive filing date of the Petition, he wouldn’t have been 6 in custody on the conviction he challenges for about a decade or 7 more. Because he was not “‘in custody’ under the conviction or 8 sentence under attack at the time his petition [wa]s filed,” this 9 Court lacks subject-matter jurisdiction, and the Petition must be 10 dismissed with prejudice. Maleng, 490 U.S. at 490; see Hays v. 11 Tews, No. CV 15-4279-DMG (KES), 2015 WL 13123193, at *2, *6-7 12 (C.D. Cal. Nov. 2, 2015) (dismissing habeas petition with 13 prejudice for lack of subject-matter jurisdiction because 14 petitioner was no longer in custody on conviction he challenged), 15 accepted by 2017 WL 962754 (C.D. Cal. Mar. 13, 2017).2 16 II. The Petition Is Untimely 17 Even had Petitioner been in custody when he filed the 18 Petition, it would still have to be dismissed because it is 19 untimely by nearly two decades. 20 21 2To the extent Petitioner challenges his 2013 sentence, 22 thereby collaterally attacking the 2000 conviction, he may not do so. “[O]nce a state conviction is no longer open to direct or 23 collateral attack in its own right” because the petitioner “failed to pursue” relief when it was available or was 24 unsuccessful in doing so, “the conviction may be regarded as conclusively valid” and federal courts are without jurisdiction 25 to review it on habeas. Lackawanna Cnty. Dist. Att’y v. Coss, 26 532 U.S. 394, 403 (2001). If an expired conviction is “later used to enhance a criminal sentence,” a petitioner “generally may 27 not challenge the enhanced sentence” through a § 2254 petition “on the ground that the prior conviction was unconstitutionally 28 obtained.” Id. at 403-04. 4 1 A. Applicable Law 2 The Antiterrorism and Effective Death Penalty Act sets forth 3 a one-year limitation period for filing a federal habeas petition 4 and specifies that the period runs from the latest of the 5 following dates: 6 (A) the date on which the judgment became final by the 7 conclusion of direct review or the expiration of the time 8 for seeking such review; 9 (B) the date on which the impediment to filing an 10 application created by State action in violation of the 11 Constitution or laws of the United States is removed, if 12 the applicant was prevented from filing by such State 13 action; 14 (C) the date on which the constitutional right asserted 15 was initially recognized by the Supreme Court, if the 16 right has been newly recognized by the Supreme Court and 17 made retroactively applicable to cases on collateral 18 review; or 19 (D) the date on which the factual predicate of the claim 20 or claims presented could have been discovered through 21 the exercise of due diligence. 22 § 2244(d)(1). AEDPA includes a statutory tolling provision that 23 suspends the limitation period for the time during which a 24 properly filed application for postconviction or other collateral 25 review is pending in state court. See § 2244(d)(2); Waldrip v. 26 Hall, 548 F.3d 729, 734 (9th Cir. 2008). In addition to 27 statutory tolling, federal habeas petitions are subject to 28 equitable tolling of the one-year limitation period in 5 1 appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). 2 Determining whether equitable tolling is warranted is a fact- 3 specific inquiry. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 4 2001) (as amended). The petitioner must show that he has been 5 pursuing his rights diligently and that some extraordinary 6 circumstance stood in his way and prevented timely filing. 7 Holland, 560 U.S. at 649. 8 As to both statutory and equitable tolling, a petitioner 9 bears the burden of demonstrating that AEDPA’s limitation period 10 was sufficiently tolled. Pace v. DiGuglielmo, 544 U.S. 408, 418 11 (2005) (equitable tolling); Smith v. Duncan, 297 F.3d 809, 814 12 (9th Cir. 2002) (as amended) (statutory tolling), abrogated on 13 other grounds by Pace, 544 U.S. at 418. 14 B. Analysis 15 Petitioner apparently pleaded guilty and was convicted on 16 August 17, 2000. (See Pet. at 1-2; see also Opp’n at 2-3.) He 17 did not file any direct appeal. See Cal. App. Cts. Case Info., 18 http://appellatecases.courtinfo.ca.gov/ (search for “Aldrete” 19 with “Raul” in Second App. Dist. yielding no direct appeal in 20 2000) (last visited July 23, 2020); (see also Opp’n at 3). He 21 does not contend that he is entitled to a later trigger date 22 under § 2244(d)(1)(B), (C), or (D), and the record discloses no 23 basis for applying any of those provisions.3 Because Petitioner 24 25 3At one point, Petitioner cites People v. Gallardo, 4 Cal. 26 5th 120 (2017) (Pet. at 3), possibly suggesting that he could not have sought relief until it came out, in December 2017. But 27 § 2244(d)(1)(C) applies to U.S. Supreme Court decisions, not state ones. See Banks v. Sherman, No. CV 18-9468-SP, 2019 WL 28 4749903, at *3 (C.D. Cal. Sept. 30, 2019) (finding that Gallardo 6 1 did not appeal, his state conviction became final for AEDPA 2 purposes on approximately October 16, 2000, 60 days after 3 judgment. See Cal. R. Ct. 8.308(a) (formerly Rule 30.1(a)); cf. 4 Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (state conviction and 5 sentence become final when availability of direct appeal has been 6 exhausted and time for filing petition for writ of certiorari has 7 elapsed or timely filed petition has been denied).4 Thus, 8 AEDPA’s one-year statute of limitations began to run on October 9 17, 2000, and ostensibly expired on October 16, 2001. See 10 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) 11 (holding that AEDPA limitation period begins day after triggering 12 event). Petitioner did not constructively file his petition 13 until December 12, 2018, more than 17 years late. 14 Petitioner does not claim to have filed any state habeas 15 petition while the limitation period was running, nor is there 16 any evidence he did so. Accordingly, because he is not entitled 17 to any statutory tolling, he must show equitable tolling 18 sufficient to account for the significant delay in filing the 19 Petition. Even if his opposition to the motion to dismiss is 20 liberally construed to argue for equitable tolling, he fails to 21 demonstrate that it should apply. 22 23 didn’t qualify petitioner for later start date under § 2244(d)(1)(C)); see also Dodd v. United States, 545 U.S. 353, 24 357-58 (2005) (construing identical language in § 2255 as expressing “clear” congressional intent that delayed accrual is 25 inapplicable unless U.S. Supreme Court itself has made new rule 26 retroactive). Thus, Gallardo cannot provide a later trigger date. 27 4Petitioner could not have filed a petition for writ of certiorari because he did not appeal to the highest state court. 28 See 28 U.S.C. § 1257; Sup. Ct. R. 13. 7 1 Petitioner alleges that his attorney failed to advise him 2 that his entry of a guilty plea would result in a conviction that 3 might be used to enhance a future sentence. (See Opp’n at 3-4.) 4 Equitable tolling may be available when misconduct by a 5 petitioner’s attorney was “sufficiently egregious” that it 6 constitutes an “extraordinary circumstance.” Porter v. Ollison, 7 620 F.3d 952, 959 (9th Cir. 2010) (as amended); see also Spitsyn 8 v. Moore, 345 F.3d 796, 801 (9th Cir. 2003) (as amended) (holding 9 that attorney’s failure to prepare and file habeas petition 10 despite petitioner’s repeatedly contacting him about it amounted 11 to sufficiently egregious misconduct for equitable tolling). 12 Even if Petitioner’s claim were true — and there is no evidence 13 of that other than his own conclusory allegation — any such 14 failing on the part of his attorney could not have caused a 17- 15 year delay. See Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 16 2009) (“The petitioner must additionally show that the 17 ‘extraordinary circumstances were the cause of his 18 untimeliness.’” (citation omitted)). Indeed, he proffers no 19 facts explaining the delay, including the five years he waited 20 after his 2013 sentence was enhanced by the 2000 conviction to 21 seek relief. See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 22 2011) (“[W]e do not doubt that tolling a case for twenty years 23 would be difficult to justify.”). 24 Accordingly, Petitioner is not entitled to a later trigger 25 date or tolling of any kind, and the Petition is untimely by more 26 27 28 8 than 17 years.°® 2 ORDER 3 IT THEREFORE IS ORDERED that Judgment be entered denying the 4|| Petition and dismissing this action with prejudice.°® ° brenhbatt~ 61 DATED: July 23, 2020 JEAN ROSENBLUTH 7 U.S. MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 "Because the Petition is untimely, the Court need not address Respondent’s exhaustion argument. (See Mot. to Dismiss at 3-5); Seals v. Jaquez, No. C 10-3707-PJH (PR), 2013 WL 92 4555227, at *3 n.4 (N.D. Cal. Aug. 27, 2013), aff'd, 623 F. App’x 363 (9th Cir. 2015). 23 °To the extent Petitioner seeks resentencing on his 2000 or 24} 2013 convictions under new state law (see Opp’n at 3, 6), he must 25 seek such relief in state court. See Jones v. Super. Ct., No. CV 15-752-JFW (PJW), 2016 WL 7638205, at *2 (C.D. Cal. Nov. 17, 26 || 2016) (claim for resentencing under Proposition 36 not cognizable in federal court), accepted by 2017 WL 43915 (C.D. Cal. Jan. 4, 27 || 2017); Nelson v. Biter, 33 F. Supp. 3d 1173, 1176-78 (C.D. Cal. 2014) (request for resentencing under Cal. Penal Code § 1170.126 28 not federal constitutional claim).