Valentine Valdez v. John Sutton

• Court: District Court, C.D. California
• Decided: June 16, 2021
• Docket: 2:20-cv-10208
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VALENTINE VALDEZ, ) Case No. 2:20-cv-10208-JC ) 12 Petitioner, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER GRANTING MOTION TO ) DISMISS AND DISMISSING 14 HEATHER SHIRLEY,1 ) PETITION AND ACTION WITH ) PREJUDICE 15 ) Respondent. ) (DOCKET NO. 9) 16 17 I. SUMMARY 18 Effective November 2, 2020,2 petitioner filed a Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) with exhibits (“Petition Ex.”) 20 challenging a 2011 judgment in Los Angeles County Superior Court Case No. 21 MA052367 (“State Case”). (Petition at 2). 22 23 24 1Heather Shirley, the Acting Warden of Wasco State Prison, is substituted in as the respondent. See Fed. R. Civ. P. 25(d). 25 2“When a prisoner gives prison authorities a habeas petition or other pleading to mail to 26 court, [pursuant to the mailbox rule,] the court deems the petition constructively ‘filed’ on the 27 date it is signed[,]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010), cert. denied, 565 U.S. 897 (2011); Houston v. Lack, 487 U.S. 266, 276 (1988), which in this case was November 28 2, 2020. The Petition was formally filed on November 4, 2021. 1 1 On February 4, 2021, respondent filed a Motion to Dismiss the Petition, 2 arguing that the Petition should be dismissed because, among other things, it is 3 untimely.3 Petitioner did not file an opposition to the Motion to Dismiss and the 4 deadline to do so has long since expired. 5 The parties have consented to proceed before a Magistrate Judge. 6 For the reasons discussed below, the Court grants the Motion to Dismiss and 7 dismisses the Petition and this action with prejudice. 8 II. PROCEDURAL HISTORY 9 On September 30, 2011, in the State Case, petitioner pleaded no contest to, 10 and was convicted of, one count of attempted murder in violation of California 11 Penal Code (“P.C.”) §§ 664/187(a) (count 1) and one count of assault with a 12 deadly weapon or force likely to produce great bodily injury in violation of P.C. 13 § 245(a)(1) (count 4). (Lodged Doc. 1 at 5-6). Petitioner also admitted that he 14 personally used a knife during the commission of counts 1 and 4 within the 15 meaning of P.C. § 12022(b)(1) and, as to count 1, that he inflicted great bodily 16 injury within the meaning of P.C. § 12022.7(a). (Lodged Doc. 1 at 6). That same 17 day, the trial court sentenced petitioner to fifteen years in state prison, consisting of 18 a 13-year sentence on count 1 and the related enhancements (9 years for the P.C. 19 §§ 664/187(a) conviction + 3 years for the P.C. § 12022.7(a) enhancement + 1 year 20 for the P.C. § 12022(b) enhancement) and a consecutive 2-year sentence on count 21 4 and the related enhancement (1 year for the P.C. § 245(a)(1) conviction + 1 year 22 for the P.C. § 12022(b)(1) enhancement). (Lodged Doc. 1 at 6-8). Petitioner did 23 not appeal his conviction or sentence. (Petition at 2). 24 /// 25 /// 26 27 3As the Court has determined that the Petition and this action should be dismissed as untimely, the Court need not and does not address the other asserted bases for dismissal 28 identified in the Motion to Dismiss. 2 1 In a letter dated July 19, 2019, the California Department of Corrections and 2 Rehabilitation (“CDCR”) requested the Superior Court review petitioner’s 3 sentence: 4 A review of the documents delivered with the above-named inmate 5 indicates the Abstract of Judgment and/or Minute Order may be in 6 error, or incomplete, for the following reasons: [¶] The Abstract of 7 Judgment and Minute Order reflect Count 04, PC 245(a)(1) Assault 8 with a Deadly Weapon with one-third the middle term of 1 year 9 imposed and enhancement PC 12022(b)(1) with 1 year imposed. 10 Pursuant to Penal Code (PC) 12022(b)(1) “Any person who 11 personally uses a deadly or dangerous weapon in the commission of a 12 felony or attempted felony shall be punished by an additional and 13 consecutive term of imprisonment, unless use of a deadly or 14 dangerous weapon is an element of that offense.” The use of a 15 deadly or dangerous weapon is an element of PC 245(a)(1). Based on 16 the discrepancy noted above the Total Time imposed may need to be 17 adjusted on the Abstract of Judgment. [¶] Please review your file to 18 determine if a correction is required. When notified by the [CDCR] 19 that an illegal sentence exists, the trial court is entitled to reconsider 20 all sentencing choices, People v. Hill, 185 Cal.App. 3d 831. We 21 would appreciate your providing a certified copy of any Minute 22 Order or modified Abstract of Judgment to this Department. May 23 we also request the attached copy of this letter be returned with your 24 response. If this case is under appellate review, please forward a copy 25 of this letter to the appellate attorney. 26 (Petition Ex. A (emphasis in original)). 27 On August 6, 2019, the Superior Court responded to the CDCR’s letter, 28 stating: 3 1 This court received the [CDCR’s] letter in the above-entitled case, 2 inviting the court to determine if a correction of the sentence is 3 necessary. In this case, [petitioner] was sentenced in accordance with 4 a plea bargain. He was facing four counts and numerous allegations, 5 including two counts which exposed him to indeterminate term[s] of 6 life in prison. He agreed to plead to two counts, and to admit certain 7 allegations, in exchange for a determinate term of 15 years in the state 8 prison. The court respectfully denies the invitation to unilaterally 9 alter the sentence. It is well settled that a judge who has accepted a 10 plea bargain is bound to impose a sentence within the limits of that 11 bargain. “A plea agreement is, in essence, a contract between the 12 defendant and the prosecutor to which the court consents to be 13 bound.” Once the court has accepted the terms of the negotiated plea, 14 it lacks jurisdiction to alter the terms of a plea bargain so that it 15 becomes more favorable to one side or the other. Both the People and 16 [petitioner] are entitled to enforce the terms of a plea bargain. 17 (Lodged Doc. 1 at 8-9). 18 On or around February 18, 2020,4 petitioner filed a habeas petition in the 19 California Court of Appeal, which denied the petition on March 20, 2020. (Lodged 20 Docs. 2-3). Effective May 10, 2020, petitioner filed a habeas petition in the 21 California Supreme Court, which denied the petition on July 29, 2020, citing 22 People v. Duvall, 9 Cal. 4th 464, 474 (1995) (“a petition for a writ of habeas 23 corpus must include copies of reasonably available documentary evidence.”). 24 (Lodged Docs. 4-5). 25 4Since such habeas petition (Lodged Doc. 2) is unsigned and does not include a proof of 26 service, the Court has not applied the mailbox rule to that petition. Nevertheless, given the 27 statute of limitations analysis set forth below, it is abundantly clear that there is no possibility that application of the mailbox rule would have altered the conclusion that petitioner’s instant 28 federal Petition is untimely. 4 1 III. DISCUSSION 2 Petitioner claims he is entitled to federal habeas relief because: (1) his 3 “sentence necessitates modification based upon [a] sentencing error by the trial 4 court in violation of” California’s determinate sentencing law (“DSL”); and (2) the 5 “trial court erred by imposing [P.C. §] 12022(b)(1) pursuant to [P.C. §] 245(a)(1) 6 thus violating the rules of the [DSL].” (Petition at 5-10 (as paginated on the 7 Court’s electronic docket)). Respondent argues that the Petition should be 8 dismissed because it is untimely. For the reasons explained below, this Court 9 agrees. 10 A. Accrual of the Statute of Limitations 11 Pursuant to 28 U.S.C. § 2244(d), a one-year statute of limitations applies to a 12 petition for a writ of habeas corpus by a person in state custody. Wall v. Kholi, 13 562 U.S. 545, 550 (2011); 28 U.S.C. § 2244(d)(1). The limitation period runs from 14 the latest of: (1) the date on which the judgment became final by the conclusion of 15 direct review or the expiration of the time for seeking such review (28 U.S.C. 16 § 2244(d)(1)(A)); (2) the date on which the impediment to filing an application 17 created by State action in violation of the Constitution or laws of the United States 18 is removed, if the applicant was prevented from filing by such State action (28 19 U.S.C. § 2244(d)(1)(B)); (3) the date on which the constitutional right asserted was 20 initially recognized by the Supreme Court, if the right has been newly recognized 21 by the Supreme Court and made retroactively applicable to cases on collateral 22 review (28 U.S.C. § 2244(d)(1)(C)); or (4) the date on which the factual predicate 23 of the claim or claims presented could have been discovered through the exercise 24 of due diligence (28 U.S.C. § 2244(d)(1)(D)). 25 Petitioner’s conviction became final on November 29, 2011, i.e., sixty days 26 after his September 30, 2011 sentencing, when the time to appeal the judgment 27 expired. See Stancle v. Clay, 692 F.3d 948, 951 (9th Cir. 2012), cert. denied, 568 28 U.S. 1198 (2013); Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010), cert. 5 1 || denied, 565 U.S. 897 (2011); California Rules of Court, Rule 8.308(a). 2 || Accordingly, the statute of limitations began to run on November 30, 2011, and 3 || absent tolling, expired on November 29, 2012 — almost eight years before 4 || petitioner filed the pending Petition. Accordingly, the statute of limitations 5 || commenced to run on November 30, 2011, and absent tolling,’ expired on 6 || November 29, 2012, unless subsections B, C or D of 28 U.S.C. § 2244(d)(1) apply 7 || in the present case. See 28 U.S.C. § 2244(d)(1)(A). 8 Subsection B of 28 U.S.C. § 2244(d)(1) has no application in the present 9 || case. Petitioner does not allege, and this Court finds no indication, that any illegal 10 || state action prevented petitioner from filing the present Petition sooner. 11 Subsection C of 28 U.S.C. § 2244(d)(1) also has no application in the 12 || present case. Petitioner’s claims are not predicated on a constitutional right “newly 13 || recognized by the Supreme Court and made retroactively applicable to cases on 14 | collateral review.” 15 Under Section 2244(d)(1)(D), the statute of limitations commences when a 16 || petitioner knows, or through the exercise of due diligence could discover, the 17 || factual predicate of his claims, not when a petitioner learns the legal significance of 18 || those facts. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001), cert. 19 || denied, 549 U.S. 904 (2006); see also Redd v. McGrath, 343 F.3d 1077, 1084 (9th 20 || Cir. 2003). Section 2244(d)(1)(D) does not require the maximum feasible 21 || diligence, but it does require reasonable diligence in the circumstances. Ford v. 22 | Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 568 U.S. 1053 (2012). 23 || “[T]he petitioner bears the burden of proving that he exercised due diligence, in 24 || order for the statute of limitations to begin running from the date he discovered the 25 26 °*“AEDPA requires a state prisoner to file a federal habeas petition pursuant to 28 U.S.C. 27 || § 2254 within one year of the date on which his conviction becomes final on direct review, unless the petitioner qualifies for statutory or equitable tolling.” Curiel v. Miller, 830 F.3d 864, 28 || 368 (9th Cir. 2016) (en banc); 28 U.S.C. § 2244(d)(1)(A).

1 || factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D).”. DiCenzi v. 2 || Rose, 452 F.3d 465, 471 (6th Cir. 2006). Here, both of petitioner’s claims arise 3 || from facts known to petitioner when he was sentenced, i.e., that he was sentenced 4 || in accordance with his plea bargain to a 15-year term of imprisonment that 5 || included a one-year term for his P.C. § 245(a)(1) conviction and an additional year 6 || for the P.C. § 12022(b)(1) enhancement attached to the P.C. § 245(a)(1) 7 || conviction. Accordingly, Subsection D does not provide a later commencement 8 | date. 9 Therefore, the statute of limitations began to run on November 30, 2011, and 10 || absent tolling, expired on November 29, 2012 — almost eight years before 11 || petitioner filed the pending Petition. 12 B. Petitioner Is Not Entitled to Statutory Tolling 13 Under 28 U.S.C. § 2244(d)(2), AEDPA’s limitations period is tolled while 14 || “‘a properly filed application for State post-conviction or other collateral review 15 || with respect to the pertinent judgment or claim is pending.’” Allen v. Siebert, 552 16 | U.S. 3, 4 (2007) (per curiam) (quoting 28 U.S.C. § 2244(d)(2)). Petitioner “bears 17 || the burden of proving that the statute of limitations was tolled.” Banjo v. Ayers, 18 | 614 F.3d 964, 967 (9th Cir. 2010), cert. denied, 564 U.S. 1019 (2011). 19 Here, petitioner did not file his initial state habeas petition until on or around 20 || February 18, 2020, well after the limitations period expired under § 2244(d)(1)(A). 21 || Since habeas petitions filed after the statute of limitations has run neither toll nor 22 || revive an expired limitations period, petitioner is not entitled to statutory tolling of 23 || the limitations period. Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013); 24 || Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 25 } (2003). 26 C. ‘Petitioner Is Not Entitled to Equitable Tolling 27 Equitable tolling is available “in appropriate cases.” Holland v. Florida, 560 28 || U.S. 631, 645 (2010). Petitioner bears the burden of proving he is entitled to

1 || equitable tolling of the statute of limitations by showing: “(1) that he has been 2 || pursuing his rights diligently, and (2) that some extraordinary circumstance stood 3 || in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Holland, 560 U.S. at 4 || 649. “The petitioner must show that ‘the extraordinary circumstances were the 5 || cause of his untimeliness and that the extraordinary circumstances made it 6 || impossible to file a petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th 7 || Cir. 2010) (citation omitted); see also Menominee Indian Tribe of Wis. v. United 8 || States, 577 U.S. 250, 257 (2016) (The “second prong of [Holland’s] equitable 9 || tolling test is met only where the circumstances that caused a litigant’s delay are 10 || both extraordinary and beyond its control.” (emphasis omitted)). “‘[T]he threshold 11 || necessary to trigger equitable tolling under [the] AEDPA is very high, lest the 12 || exceptions swallow the rule.’” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 13 | 2006) (citation omitted); Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). 14 Here, petitioner does not contend he is entitled to equitable tolling, and the 15 || pending Petition does not suggest any viable equitable tolling claim. 16 D. Actual Innocence 17 In rare and extraordinary cases, a plea of actual innocence can serve as a 18 || gateway through which a petitioner may pass to overcome the statute of limitations 19 || otherwise applicable to federal habeas petitions. McQuiggin v. Perkins, 569 U.S. 20 | 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en 21 || banc). “[A] petitioner does not meet the threshold requirement unless he [or she] 22 || persuades the district court that, in light of the new evidence, no juror, acting 23 || reasonably, would have voted to find him [or her] guilty beyond a reasonable 24 | doubt.” Perkins, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 25 (1995)). 26 In order to make a credible claim of actual innocence, a petitioner must 27 || “support his allegations of constitutional error with new reliable evidence — 28 || whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

1 || critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 2 || 324. The habeas court then “consider[s] all the evidence, old and new, 3 || incriminating and exculpatory, admissible at trial or not.” Lee, 653 F.3d at 938 4 || (internal quotations omitted; citing House v. Bell, 547 U.S. 518, 538 (2006)). On 5 || this record, the court “must make a “probabilistic determination about what 6 || reasonable, properly instructed jurors would do.’” House, 547 U.S. at 538 (quoting 7 || Schlup, 513 U.S. at 329). Unexplained or unjustified delay in presenting new 8 || evidence is a “factor in determining whether actual innocence has been reliably 9 || shown.” Perkins, 569 U.S. at 387, 399; Schlup, 513 U.S. at 332 (“A court may 10 || consider how the timing of the submission and the likely credibility of a 11 || [petitioner’s] affiants bear on the probable reliability of... evidence [of actual 12 || innocence].”). 13 Here, petitioner has not submitted new, reliable evidence to cast doubt on 14 || his conviction to permit the Court to consider his apparently otherwise time-barred 15 | claims. Accordingly, “actual innocence” does not serve as a gateway entitling 16 || petitioner to have his claims heard on the merits in this case. 17] 1V. ORDER 18 For the foregoing reasons, the Motion to Dismiss is granted, the Petition and 19 || this action are dismissed with prejudice, and Judgment shall be entered 20 || accordingly. 21 DATED: June 16, 2021

53 Honorable Jacqueline Chooljian 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28