Siegel v. Neuschmid

• Court: District Court, S.D. California
• Decided: February 5, 2020
• Docket: 3:18-cv-02493
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 JOSHUA SIEGEL, Case No.: 18-cv-02493-WQH-BGS

15 Petitioner, REPORT AND 16 v. RECOMMENDATION RE MOTION TO DISMISS PETITION FOR WRIT 17 Robert Neuschmid; Xavier Becerra The OF HABEAS CORPUS Attorney General of the State of 18 California, [ECF No. 6] 19 Respondent. 20

21 Petitioner Joshua Siegel (“Petitioner”), a state prisoner proceeding pro se and in 22 forma pauperis, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 23 U.S.C. §2254, challenging his 2014 conviction in San Diego County Superior Court case 24 number SCD248328. (ECF No. 1.)1 Respondent Robert Neuschmid (“Respondent”) 25 moves to dismiss the Petition contending the Petition is untimely. (ECF No. 6.) Petitioner 26 27 1 The Court cites the CM/ECF pagination when referencing the Petition and attached exhibits (ECF No. 1) and Respondent’s Motion to Dismiss (ECF No. 6). It cites to internal 28 1 did not file an opposition. (See docket.) 2 This Report and Recommendation is submitted to United States District Judge 3 William Q. Hayes pursuant to 28 U.S.C. § 636 (b)(1) and Local Civil Rule HC.2 of the 4 United States District Court for the Southern District of California. Based on the 5 documents and evidence presented, and for the reasons set forth below, the Court 6 RECOMMENDS that Respondent’s Motion to Dismiss (ECF No. 6) be GRANTED and 7 that this action be DISMISSED. 8 I. BACKGROUND 9 On August 27, 2014, a jury in San Diego County Superior Court case number 10 SCD248328 convicted Petitioner of one count of attempted robbery pursuant to California 11 Penal Codes § 211 and § 664; two counts of assault with a deadly weapon pursuant to Penal 12 Code § 245(a)(1); and one count of burglary pursuant to Penal Code § 459. A true finding 13 was made that Petitioner personally used a deadly and dangerous deadly weapon pursuant 14 to Penal Code §§ 12022(b)(1), 1192.7(c)(23), and Petitioner admitted to seven prior strike 15 offenses and seven prior serious felony offenses. (Lodgment 3, CT at 264–67; Lodgment 16 12 at 2–3.) On March 13, 2015, Petitioner was sentenced to eighty-one (81) years to life 17 in prison. (Lodgment 3, CT at 207, 209.) 18 Petitioner filed a timely direct appeal with the California Court of Appeal. 19 (Lodgment 12 at 3; Lodgment 4.) Following briefing, the California Court of Appeal 20 issued an opinion affirming the judgement. (Lodgment 7.) On March 13, 2017, on a 21 rehearing, the California Court of Appeal again affirmed the trial court’s ruling. 22 (Lodgment 12 at 59.) Petitioner then filed a petition for review with the California Supreme 23 Court. (Lodgment 13.) On June 21, 2017, the California Supreme Court denied the petition 24 for review. (Lodgment 14.) 25 Petitioner did not file any state habeas corpus petitions. (See Lodgments.) He 26 constructively filed the instant federal Petition for Writ of Habeas Corpus on October 24, 27 2018, nearly sixteen months after the California Supreme Court’s denial, in which he 28 1 alleges nine claims of various due process violations and ineffective assistance of counsel. 2 (ECF No. 1 at 14.) 3 Respondent filed his Motion to Dismiss the Petition on June 26, 2019. (ECF No. 6.) 4 Petitioner did not file any opposition to the motion. (See ECF No. 4 [setting opposition 5 deadline as August 22, 2019].) 6 II. DISCUSSION 7 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 8 Courts expressly permits a district court to dismiss a habeas petition “[i]f it plainly appears 9 from the petition and any attached exhibits that the petitioner is not entitled to relief in the 10 district court.” Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254; see also 11 Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (“Rule 4 explicitly allows a 12 district court to dismiss summarily the petition on the merits when no claim for relief is 13 stated.”). 14 As an initial matter, the Court notes that Petitioner named two Respondents in his 15 Petition: Robert Neuschmid, the Warden, and Xavier Becerra, the California Attorney 16 General. (See ECF No. 1.) Rule 2 of the Rules Governing § 2254 Cases provides that the 17 state officer having custody of the petitioner shall be named as respondent. See Rule 2(a), 18 Rules Governing Section 2254 Cases, foll. 28 U.S.C.A. § 2254. “If the petitioner is not 19 yet in custody—but may be subject to future custody—under the state-court judgment 20 being contested, the petition must name as respondents both the officer who has current 21 custody and the attorney general of the state where the judgment was entered.” Id. Rule 22 2(b). Petitioner is in custody and is currently serving his sentence. Because there is no 23 basis for Petitioner to have named the California Attorney General as a Respondent, the 24 Court RECOMMENDS dismissing Xavier Becerra as a named Respondent to this action. 25 In his Motion to Dismiss, Respondent Neuschmid moves to dismiss the Petition as 26 untimely. (ECF No. 6-1.) Respondent asserts that the limitations period in this case started 27 to run in September 2017 when Petitioner’s state court judgment became final. (Id. at 2– 28 3.) Respondent argues that Petitioner is not entitled to statutory or equitable tolling. (Id.) 1 As noted above, Petitioner did not file an opposition. 2 A. The Petition Is Barred by the AEDPA Statute of Limitations 3 Respondent argues the Petition is barred by the Antiterrorism and Effective Death 4 Penalty Act of 1996’s one-year statute of limitations as no statutory tolling occurred before 5 the limitations period expired and there is no basis for equitable tolling. (ECF No. 6–1 at 6 2–3). For the reasons discussed below, statutory tolling does not render the Petition timely, 7 Petitioner is not entitled to equitable tolling, and he does not fall within the narrow actual 8 innocence exception. 9 1. AEDPA’s One Year Statute of Limitations and Commencement of the 10 Limitations Period 11 The instant Petition was filed after April 24, 1996 and is subject to the Antiterrorism 12 and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA provides a one-year statute 13 of limitations for filing a habeas corpus petition in federal court. Pace v. DiGuglielmo, 544 14 U.S. 408, 410 (2005) (citing 28 U.S.C. § 2244(d)(1)). This one-year statute of limitations 15 period begins to run at the latest of: 16 (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; 17

18 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 19 removed, if the applicant was prevented from filing by such State action; 20 (C) the date on which the constitutional right asserted was initially recognized 21 by the Supreme Court, if the right has been newly recognized by the 22 Supreme Court and made retroactively applicable to cases on collateral review; or 23

24 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 25 26 28 U.S.C. § 2244(d)(1). Here, subparagraphs (B) through (D) are not applicable to 27 Petitioner. He has provided no argument or evidence that there were state impediments 28 preventing him from seeking further relief, that his claims rely on a new constitutional 1 right, or that the factual predicate for his claim was unknown at the time his conviction 2 became final. Thus, AEDPA’s one-year statute of limitations begins to run on “the date 3 on which judgment became final by the conclusion of direct review or the expiration of the 4 time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). Petitioner had one year from 5 the date his conviction became final to file a petition for writ of habeas corpus in federal 6 court. Calderon v. U.S. District Court, 128 F.3d 1283, 1286–87 (9th Cir. 1997), as 7 amended on denial of reh’g and reh’g en banc, cert. denied, 522 U.S. 1099 (1998), 8 overruled on other grounds by Calderon v. U.S. District Court, 163 F.3d 530 (9th Cir. 9 1998), cert. denied 523 U.S. 1063 (1999). 10 When a habeas petitioner seeks discretionary review by the state’s highest court but 11 does not file a petition with the United States Supreme Court, the judgment becomes final 12 when the prisoner’s time to petition the Supreme Court expires. Gonzalez v. Thaler, 565 13 U.S. 134, 149-50 (2012); see also United States v. Winkles, 795 F.3d 1134, 1136 n.1 (9th 14 Cir. 2015) (citing Clay v. United States, 537 U.S. 522, 532 (2003)) (“The time for filing a 15 section 2255 motion is one year from the date on which the judgment of conviction 16 becomes final. 28 U.S.C. § 2255(f)(1). This period includes the 90 days in which a 17 defendant may petition for certiorari to the Supreme Court.”) United States Supreme Court 18 Rule 13 provides that a petition for certiorari must be filed within ninety days of the entry 19 of an order denying discretionary review by the state supreme court. See Sup. Ct. R. 13. 20 Thus, Petitioner’s conviction became final 90 days after the California Supreme Court 21 denied his petition for direct review. See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 22 1999). 23 Here, Petitioner filed a direct appeal of his case to the California Court of Appeal 24 and later filed a petition for review with the California Supreme Court. (Lodgments 4, 13.) 25 The California Supreme Court denied the petition on June 21, 2017. (Lodgment 14.) After 26 ninety days, on September 19, 2017, Petitioner’s conviction became final for the purposes 27 of AEDPA. See Bowen, 188 F.3d at 1158–59 (finding that because direct review of a 28 conviction includes the ninety-day period within which a petitioner could have filed a 1 petition for a writ of certiorari from the United States Supreme Court). The statute of 2 limitations for federal habeas corpus began to run on September 20, 2017, the day after the 3 judgment became final. See 28 U.S.C. § 2244(d)(1)(A); see also Corjasso v. Ayers, 278 4 F.3d 874, 877 (9th Cir. 2002) (explaining that the one-year statute of limitations under 5 AEDPA begins to run the day after the conviction becomes final). Petitioner had 365 days, 6 until September 18, 2018, to file his federal habeas petition. However, the instant federal 7 Petition was not constructively filed until October 24, 2018. (See ECF No. 1.) Thus, absent 8 statutory or equitable tolling, the Petition is untimely on its face and must be dismissed. 9 See Calderon, 128 F.3d at 1288 (AEDPA’s statute of limitations may be subject to both 10 statutory and equitable tolling). 11 2. Statutory Tolling 12 AEDPA’s statutory tolling provision suspends the one-year statute of limitations 13 period for the amount of time a “properly filed application for State post-conviction or 14 other collateral review” is pending in state court. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 15 183 F.3d 1003, 1005 (9th Cir. 1999), overruled on other grounds by Carey v. Saffold, 536 16 U.S. 214 (2002). A petitioner “bears the burden of proving that the statute of limitations 17 was tolled.” Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010). State habeas petitions filed 18 after the one-year statute of limitations has expired do not revive the statute of limitations 19 and have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 20 (“section 2244(d) does not permit the reinitiation of the limitations period that has ended 21 before the state petition was filed”). 22 Petitioner did not file any state habeas corpus petitions. (See Lodgments.) Thus, 23 Petitioner is not entitled to any statutory tolling and the one-year statute of limitations 24 period expired on September 19, 2018. Unless Petitioner can establish he is entitled to 25 equitable tolling, his Petition is untimely. 26 3. Equitable Tolling 27 In addition to statutory tolling, AEDPA’s one-year statute of limitations may be 28 subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 1 (2010). However, the threshold necessary to trigger equitable tolling is high and, thus, it 2 is not available in most cases. Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). 3 Petitioner bears a heavy burden to prove an entitlement to equitable tolling, “lest the 4 exceptions swallow the rule.” Id. (internal quotation marks omitted). To be entitled to 5 equitable tolling, a habeas petitioner has the burden to establish two elements: (1) “he has 6 been pursuing his rights diligently,” and (2) “some extraordinary circumstance stood in his 7 way.” Holland, 560 U.S. at 649 (citing Pace, 544 U.S. at 418); see also Lawrence v. 8 Florida, 549 U.S. 327, 335 (2007) (same). The failure to file a timely petition must be the 9 result of external forces, not the result of the petitioner’s lack of diligence. Miles v. Prunty, 10 187 F.3d 1104, 1107 (9th Cir. 1999). “Determining whether equitable tolling is warranted 11 is a ‘fact-specific inquiry.’” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting 12 Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). 13 Here, Respondent argues Petitioner is not entitled to equitable tolling because “[t]he 14 factual predicates for his claims were known to him since the filing of the petition for 15 review (Lodgment 13), since all he has done in these federal proceedings is attach copies 16 of the petition for review, and the decision of the California Court of Appeal as the basis 17 for his claims in this Court.” (ECF No. 6-1 at 3.) 18 In what appears to be a letter appended to final pages of his Petition, Petitioner states 19 that the Petition “may be late” because he has “been moved to four different prisons within 20 the past two and a half years and my legal papers did not arrive with me, causing delay in 21 getting my petition in on time.” (ECF No. 1 at 154.) He does not specify the dates he was 22 relocated to the various facilities, how long he was without access to his legal materials, 23 when he gained access to his legal materials, or whether he requested his materials during 24 that time. (See id.); see Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002) (a “temporary 25 deprivation of an inmate’s legal materials does not, in all cases, rise to a constitutional 26 deprivation.”); Hartley v. Hall, 335 F. App’x 686, 687 (9th Cir. 2009) (“there must be a 27 causal link between lateness and the extraordinary circumstances”). 28 1 While the Ninth Circuit has held that “a complete lack of access to a legal file may 2 constitute an extraordinary circumstance”, Petitioner has not demonstrated that a complete 3 lack of access to his legal file made timely filing impossible. Ramirez v. Yates, 571 F.3d 4 993, 998 (9th Cir. 2009) (discussing Espinoza-Matthews v. California, 432 F.3d 1021, 5 1027–28 (9th Cir. 2005), which held equitable tolling was appropriate when petitioner was 6 deprived of his legal papers for eleven months despite his diligence and had only one month 7 to file). Additionally, he has failed to show that he diligently pursued his right to obtain 8 his legal papers. See Rodriguez v. Evans, No. C 05 4560 JP PR, 2007 WL 951820, at *6 9 (N.D. Cal. Mar. 28, 2007) (no equitable tolling when petitioner had access to his legal 10 materials two months prior to the expiration of AEDPA’s one-year limitations period and 11 did not allege that he was denied access to his legal materials despite his requests). Finally, 12 Petitioner did not oppose Respondent’s Motion to Dismiss and thus failed to address why 13 he should be entitled to equitable tolling given Respondent’s assertion to the contrary. (See 14 docket.) When given an opportunity to explain the circumstances surrounding the 15 untimeliness of his Petition, he declined to do so. Accordingly, the Court concludes that 16 Petitioner has not established facts demonstrating he is entitled to equitable tolling. See 17 Espinoza-Matthews, 432 F.3d at 1026 (petitioner “bears the burden of showing that 18 equitable tolling is appropriate”). 19 4. Miscarriage of Justice Exception 20 Under the “fundamental miscarriage of justice” exception to the AEDPA limitation 21 period, a habeas petitioner may pursue constitutional claims on the merits “notwithstanding 22 the existence of a procedural bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 23 (2013). In rare and extraordinary circumstances, a plea of actual innocence can serve as a 24 gateway through which a petitioner may pass to overcome the one-year statute of 25 limitations applicable to federal habeas petitions under AEDPA. Id. at 386; see also Lee 26 v. Lampert, 653 F.3d 929, 934–37 (9th Cir. 2011) (en banc). To show actual innocence, 27 the petitioner must meet the threshold requirement set forth in Schlup v. Delo, 513 U.S. 28 298 (1995). This requires a petitioner to “support his allegations of constitutional error 1 with new reliable evidence―whether it be exculpatory scientific evidence, trustworthy 2 eyewitness accounts, or critical physical evidence―that was not presented at trial.” Id. at 3 324. Further, a petitioner must “persuade[ ] the district court that, in light of the new 4 evidence, no juror, acting reasonably, would have voted to find him guilty beyond a 5 reasonable doubt.” McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329 [noting 6 the miscarriage of justice exception only applies to cases in which new evidence shows “it 7 is more likely than not that no reasonable juror would have convicted the petitioner”]). 8 This exacting standard “permits review only in the extraordinary case, but it does not 9 require absolute certainty about the petitioner’s guilt or innocence.” Larsen v. Soto, 742 10 F.3d 1083, 1095 (9th Cir. 2013). Critically, “actual innocence,” for purposes of Schlup, 11 “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 12 U.S. 614, 623 (1998). 13 Here, Petitioner does not argue that he was “actually innocent” of the crimes for 14 which he was convicted. (See ECF No. 1 [raising claims of procedural due process 15 violations and ineffective assistance of counsel].) Further he has presented no new 16 evidence that warrants such a finding. Thus, Petitioner is not entitled to tolling pursuant to 17 the actual innocence exception. 18 5. Conclusion 19 The Petition is not timely under 28 U.S.C. § 2244(d)(1). As discussed above, 20 statutory tolling does not render the Petition timely, as Petitioner never filed a state habeas 21 petition, and Petitioner has not met the heavy burden to prove he is entitled to equitable 22 tolling. Further, he does not claim to fall within the miscarriage of justice exception. Thus, 23 the Petition is barred as untimely under AEDPA’s statute of limitations and must be 24 dismissed. 25 III. CONCLUSION AND RECOMMENDATION 26 For the reasons stated above, IT IS HEREBY RECOMMENDED the Court issue 27 an Order: (1) approving and adopting this Report and Recommendation; and 28 (2) GRANTING Respondent’s Motion to Dismiss the Petition (ECF No. 6); and 1 || (3) directing that judgment be entered dismissing the Petition. 2 IT IS HEREBY ORDERED that no later than February 25, 2020, any party to this 3 |}action may file written objections with the Court and serve a copy on all parties. The 4 ||document should be captioned “Objections to Report and Recommendation.” 5 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 6 || the Court and served on all parties by March 3, 2020. 7 The parties are advised that failure to file objections within the specified time may 8 || waive the right to raise those objections on appeal of the Court’s order. Wilkerson v. 9 || Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 10 || (9th Cir 1991)). 11 | Dated: February 4, 2020 FE A. L x , 44 12 on. Bernard G. Skomal 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28