Starr v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CIARA SKY STARR, Case No. 3:22-cv-0455-MMA (BLM)

12 Petitioner, ORDER DENYING MOTION TO 13 v. AMEND JUDGMENT

14 JEFF MACOMBER, Secretary, et al., [Doc. No. 46] 15 Respondents. 16 I. INTRODUCTION 17 Petitioner Ciara Sky Starr ( “Petitioner”), a state prisoner proceeding pro se, filed a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) in this case 19 on March 29, 2022 challenging her convictions in San Diego Superior Court case nos. 20 SCD273115 and SCD 265745. See Doc. No. 1. She filed an Amended Petition on 21 January 29, 2023. See Doc. No. 20. Respondent filed a Motion to Dismiss the Amended 22 Petition as untimely on May 23, 2024, which Petitioner opposed. See Doc. Nos. 40–43. 23 On July 31, 2024, the Court granted the Motion to Dismiss, concluding the Petition was 24 untimely, and denied a Certificate of Appealability. See Doc. No. 44. Petitioner has now 25 filed a Motion to Amend Judgment pursuant to Rule 59(e).1 26 27

28 1 II. DISCUSSION 2 “Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is 3 presented with newly discovered evidence, (2) the district court committed clear error or 4 made an initial decision that was manifestly unjust, or (3) there is an intervening change 5 in controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001) 6 (School Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th 7 Cir.1993)). “The Rule gives a district court the chance ‘to rectify its own mistakes in the 8 period immediately following’ its decision.” Banister v. Davis, 590 U.S. 504, 508 (2020) 9 (quoting White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 450 10 (1982)). 11 Petitioner’s motion focuses on the Court’s analysis of the date the statute of 12 limitations began running under 28 U.S.C. § 2244(d)(1)(D) on her claim that counsel was 13 ineffective for failing to file a notice of appeal and a request for a certificate of probable 14 cause; she asserts the Court erred in its calculation. See Doc. No. 44 at 10; Doc. No. 46 15 at 3–4. As the Court noted in its Order Granting the Motion to Dismiss, a one-year 16 statute of limitation applies to petitions for writ of habeas corpus filed by a state prisoner 17 who is challenging his state court conviction in in federal court. 28 U.S.C. § 2244(d)(1). 18 The limitation period begins to run “from the latest of” the following: 19 (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; 20

21 (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 22 removed, if the applicant was prevented from filing by such State action; 23 (C) the date on which the constitutional right asserted was initially 24 recognized by the Supreme Court, if the right has been newly recognized by 25 the Supreme Court and made retroactively applicable to cases on collateral review; or 26

28 1 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 2

3 28 U.S.C. § 2244(d)(1). 4 The Court analyzed the timeliness of Petitioner’s ineffective assistance of counsel 5 claim in Ground One of the Petition under subsection (D) because while Petitioner 6 alleged her attorney failed to file a notice of appeal and a request for a certificate of 7 probable cause, she did not give a specific date when she learned of this failure. Doc. 8 No. 20 at 7. In her Rule 59(e) motion, Petitioner argues the date the Court should have 9 used to calculate the statute of limitations under subsection (D) is August 20, 2019, 10 because that is the date she learned of counsel’s failure to file a notice of appeal and 11 request for certificate of probable cause. Doc. No. 46 at 33–4. In its Order Granting the 12 Motion to Dismiss, however, the Court concluded that the latest date the statute of 13 limitations could have commenced as to Ground One was November 14, 2019, because 14 in the habeas corpus petition she filed in the California Supreme Court on that date, 15 Petitioner explicitly stated she knew her attorney had failed to file a notice of appeal and 16 request for a certificate of probable cause. See Doc. No. 41-21 at 9–10; Doc. No. 44 at 17 10–11. Using the November 14, 2019 date as the date the statute of limitations began 18 running, the Court concluded the Petition in this case was untimely. See Doc. No. 44 at 19 10–11. 20 Although Petitioner’s claim that she learned of counsel’s errors on August 20, 21 2019, instead of the November 19, 2019 date could be construed as “newly discovered 22 evidence,” it would not change the outcome of Petitioner’s case. The Court used the 23 November 19, 2019, date to calculate the statute of limitations in a desire to give 24 Petitioner the benefit of any doubt as to when she learned of counsel’s failure to file a 25 notice of appeal and request for certificate of probable cause. If the Court were to accept 26 Petitioner’s assertion that she learned of counsel’s errors on August 20, 2019, and not 27 November 19, 2019, the Petition in this case would still be untimely. Accordingly, the 28 Court is unable to grant Petitioner relief pursuant to Rule 59(e). ] III. CONCLUSION 2 For the foregoing reasons, the Court DENIES Petitioner’s Motion to Amend 3 || Judgment [Doc. No. 46]. Rule 11 of the Rules Following 28 U.S.C. § 2254 requires the 4 || District Court to “issue or deny a certificate of appealability when it enters a final order 5 || adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254 (West Supp. 2020). A COA 6 || will issue when the petitioner makes a “substantial showing of the denial of a 7 || constitutional right.” 28 U.S.C. § 2253; Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 8 ||2005). A “substantial showing” requires a demonstration that “‘reasonable jurists would 9 || find the district court’s assessment of the constitutional claims debatable or wrong.’” 10 || Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002), quoting Slack v. McDaniel, 529 US. 11 ||473, 484 (2000). Here, the Court concludes Petitioner has not made the required 12 ||showing, and therefore a certificate of appealability is hereby DENIED. 13 IT IS SO ORDERED. 14 || Dated: September 11, 2024 15

17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28