Opinion
Case No. 2:17-cv-07345-AB-KES
08-31-2018
SCOTT NOLDEN III, Petitioner, v. PAUL LOZANO, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Report and Recommendation ("R&R") is submitted to the Honorable Andre Birotte Jr., United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
On October 1, 2017, Scott Nolden III ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1 at 41.) Petitioner is a California state prisoner currently serving a sentence of six years after pleading "no contest" in 2014 to domestic abuse crimes. (Id. at 2.)
All page citations are to the CM/ECF pagination.
On March 22, 2018, Petitioner constructively filed the operative First Amended Petition ("FAP"). (Dkt. 31 at 61.)
Even assuming (without deciding) that all the claims in the FAP relate back to the Petition, this action should be dismissed because the Petition is untimely.
II.
PROCEDURAL BACKGROUND
A. Conviction and Direct Appeal.
In Los Angeles County Superior Court case number KA105947, Petitioner pleaded no contest to one count of corporal injury to a girlfriend (Cal. Penal Code § 273.5(f)(1)) and admitted a great bodily injury enhancement (Cal. Penal Code § 12022.7(e)). The trial court sentenced Petitioner to six years in state prison. People v. Nolden, 2015 Cal. App. Unpub. LEXIS 980, at *1-2 (Feb. 13, 2015).
Petitioner also admitted that the conviction in case number KA105947 constituted a violation of the terms of his probation in Los Angeles County Superior Court case number KA099355. For the probation violation, Petitioner was sentenced to three years in state prison to be served concurrently with the six-year term imposed in case number KA105947. Id.
On direct appeal, after appointed counsel found no appealable issues and after an independent review of the record, the California Court of Appeal also found no arguable issues existed pursuant to People v. Wende, 25 Cal. 3d 436, 441 (1979). Id. at *3-4. The California Court of Appeal affirmed the judgment on February 13, 2015. Id. Petitioner did not file a petition for review in the California Supreme Court. See California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov. B. State and Federal Collateral Challenges.
1. First State Petition.
On August 23, 2015, Petitioner constructively filed a petition for writ of habeas corpus in California Supreme Court case number S229178. (Nolden I, LD 3.) On January 13, 2016, the California Supreme Court denied the habeas corpus petition with citations to People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Swain, 34 Cal. 2d 300, 304 (1949). (Nolden I, LD 4.)
"Nolden I" refers to Petitioner's previous habeas corpus matter, Nolden v. Tampkins, CV 16-1047-AB (KES). "LD" refers to the lodged documents in that case.
2. Prior Federal Petition.
On February 16, 2016, Petitioner filed a petition for writ of habeas corpus in this Court. (Nolden I, Dkt. 1.) Generally, the petition challenged the portion of his sentence attributable to a probation violation because he was unaware of the conditions of his probation. (Id. at 5-7, 10-17, 20.) This Court dismissed that petition with leave to amend for failure to state federal constitutional claims. (Nolden I, Dkt. 1, 5.) Petitioner subsequently filed a first amended petition with eight grounds for relief. (Nolden I, Dkt. 6.) Upon screening, the Court noted that in addition to failing to plead a clear factual and/or federal basis for every claim, Petitioner had added claims that did not appear to be exhausted. (Nolden I, Dkt. 9 at 3.) The Court instructed that if "a petitioner presents a mixed petition, the petitioner may seek to stay the exhausted claims while he pursues the unexhausted claims in state court. Rhines v. Weber, 544 U.S. 269, 278 (2005)." (Id. at 4.) The Court noted that Petitioner had not yet moved for a stay. (Id. at 4-5.) The Court directed Petitioner to show cause why his first amended petition should not be dismissed as mixed, thereby giving Petitioner the opportunity to move for a stay. (Id. at 5.)
Petitioner did not move for a stay. Instead, Petitioner responded to the order to show cause by presenting arguments concerning the merits of his claims (e.g., that he never knew the conditions of his probation because he never reported to probation). (Nolden I, Dkt. 12 at 3.) He also filed a second amended petition reducing his claims to three. (Nolden I, Dkt. 17.) Rather than engaging in further screening, the Court ordered Respondent to respond. (Dkt. 20.)
On August 10, 2016, Respondent moved to dismiss the second amended petition, arguing that Petitioner's claims were unexhausted because he had presented them to the California Supreme Court in a procedurally defective manner. Specifically, Respondent argued that the California Supreme Court's citations to Duvall and Swain, in denying Petitioner relief, indicated Petitioner had failed to allege with sufficient particularity the facts warranting habeas relief. (Nolden I, Dkt. 30.)
People v. Duvall, 9 Cal. 4th 464, 474 (1995); In re Swain, 34 Cal. 2d 300, 304 (1949).
Before opposing the motion, Petitioner sought further leave to amend, which the Court denied without prejudice. (Nolden I, Dkt. 38, 39.) Petitioner then opposed the motion to dismiss. (Nolden I, Dkt. 41.) He argued that the grounds in the second amended petition were adequately exhausted rather than seeking a stay to pursue further exhaustion efforts. (Id. at 4.) The Court entered a minute order again pointing out that Petitioner had not moved for a stay and inviting Respondent to file a reply. (Dkt. 42.) When Respondent declined to do so, the Court issued an R&R recommending the dismissal of the second amended petition as unexhausted based on the California Supreme Court's citation to Duvall and Swain and the conclusory way in which Petitioner had presented his claims. (Nolden I, Dkt. No. 47 at 6-7.) Petitioner filed objections, but he did not move for a stay. (Dkt. 51.) On March 22, 2017, the Court entered judgment dismissing the second amended petition without prejudice. (Dkt. 53.)
On September 8, 2017, this Court received a letter from Petitioner in which he stated that he "filed an Amended Writ of Habeas Corpus back into the Supreme Court of California, in the beginning of June 2017 [and] also in the middle of June 2017," and that he "is currently waiting for a response from the Supreme Court." (Nolden I, Dkt. 56.) This Court advised Petitioner that he could (1) wait until the California Supreme Court rules on his state habeas claims and then file a new federal habeas petition, or (2) file a new federal habeas petition and a motion to stay the federal proceedings while he waits for a ruling from the California Supreme Court on his state habeas claims. The Court also advised Petitioner that he would be required to show the timeliness of any new federal petition filed, but that it appeared the statute of limitation had since expired. (Nolden I, Dkt. No. 57 at 4, n.2.)
3. Instant Federal Petition and State Exhaustion Petition.
Petitioner elected the second option and constructively filed the instant Petition on October 1, 2017. (Dkt. 1 at 41.) He concurrently moved for a stay. (Dkt. 2; see also Dkt. 19 [renewing motion for stay].) On October 20, 2017, Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, case number S245005. (Dkt. 17.)
"Under the mailbox rule, a prisoner's pro se habeas petition is deemed filed when he hands it over to prison authorities for mailing to the relevant court." Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citation omitted); Houston v. Lack, 487 U.S. 266 (1988). A court generally deems a habeas petition filed on the day it is signed, Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010), because it assumes the petitioner turned the petition over to prison authorities for mailing on that day. Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam, as amended). Respondent asserts that Petitioner is not entitled to the benefit of the prison mailbox rule because he turned over the Petition for mailing after expiration of the statute of limitations. (Dkt. 30 at 4 n.3.) Without deciding this issue, even giving Petitioner the benefit of the constructive filing date, the Petition is untimely.
Respondent opposed the motion to stay. (Dkt. 16.) Petitioner filed an "objection"/reply to the opposition. (Dkt. 20.) On January 31, 2018, the California Supreme Court denied the habeas petition in S245005. (See California Courts, Appellate Courts Case Information, http://appellatecases.courtinfo.ca.gov.)
After Petitioner's motion to stay was briefed, on February 5, 2018, this Court issued an order noting that the pending federal Petition appeared to be untimely, such that Petitioner would not benefit from a Rhines stay. (Dkt. 21.) The Court ordered the parties to file briefing addressing the issue of timeliness. (Id.)
The Court may sua sponte raise the issue of untimeliness. See Day v. McDonough, 547 U.S. 198, 209 (2006) ("district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition").
On February 23, 2018, Petitioner filed his response. (Dkt. 22.) He explained that his delayed filing was due to a prison transfer and his attempts to exhaust his claims in state court while being "just a layman" in legal matters. (Id. at 3-4.) He argued that Respondent is not prejudiced by the delay and that the "interest of justice would be served by addressing the merits" of his FAP. (Id. at 4.)
On March 21, 2018, Respondent filed his response arguing that (1) Petitioner is not entitled to sufficient statutory tolling, and (2) none of Petitioner's explanations entitle him to equitable tolling. (Dkt. 30.)
III.
DISCUSSION
A. The AEDPA's Statute of Limitations.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner ordinarily has one year from the date his conviction becomes final to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). The period of limitation is tolled while a properly filed state post-conviction petition is pending. 28 U.S.C. § 2244(d)(2).
Here, the California Court of Appeal affirmed the judgment against Petitioner on February 13, 2015. (Nolden I, LD 2.) Petitioner did not seek review in the California Supreme Court. Thus, Petitioner's judgment became final at the expiration of the time in which to file a petition for review to the California Supreme Court, i.e., forty days from issuance of the court of appeal opinion, on March 25, 2015. See Cal. R. Ct. 8.500(e) ("A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court."); Cal. R. Ct. 8.264(b)(1) ("A Court of Appeal decision in a civil appeal ... is final in that court 30 days after filing."); see, e.g., Brown v. Sisto, 303 F. App'x 458, 459-60 (9th Cir. 2008). Absent tolling, Petitioner therefore had until March 25, 2016, to file his federal petition. B. Statutory Tolling.
Petitioner is entitled to tolling for the pendency of his first state habeas petition filed in the California Supreme Court in case number S229178. 28 U.S.C. § 2244(d)(2). Thus, he is entitled to tolling from the constructive filing date (August 23, 2015) through the denial date (January 13, 2016), i.e., 144 days. With the additional 144 days of tolling, the AEDPA limitation period was extended to August 16, 2016.
See Nolden I, LD 3, Dkt 31-1 at 16 (signature date). --------
Petitioner, however, is not entitled to statutory tolling for the pendency of his other state habeas petition in case number S245005, from October 20, 2017 to January 31, 2018, because it was filed after August 16, 2016, i.e., after the expiration of the one-year statute of limitation. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding § 2254(d) does not permit the re-initiation of the limitation period that ended before a state petition is filed). Petitioner is also not entitled to statutory tolling for the pendency of Nolden I, although it was filed in February 2016. Duncan v. Sherman Walker, 533 U.S. 167, 181-82 (2001) (concluding that "§ 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition"). C. Equitable Tolling.
The AEDPA statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). To qualify, a petitioner must demonstrate: (1) that he has been pursuing his rights diligently, and (2) that some "extraordinary circumstance" stood in his way that prevented him from timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418(2005)). The "extraordinary circumstance" requirement "suggests that an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)) (internal quotation marks omitted). "The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, ... and that the extraordinary circumstances made it impossible to file a petition on time[.]" Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal quotations, brackets, and citations omitted). A litigant bears a heavy burden to establish that equitable tolling applies, because "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citation omitted).
Here, Petitioner argues that after the Court dismissed Nolden I without prejudice in March 2017, he prepared "a motion ... by 4-30-17 & before I could send the motion back to court I was put up for transfer ..." and it took the prison system "more than two months to transfer me." (Dkt. 22 at 3.) The AEDPA statute of limitations, however, expired in August 2016, so filing difficulties in 2017 do not address the relevant time.
Petitioner also appears to argue that the timeliness of the Petition should be judged based on the filing date of Nolden I, because he thought he had "dismiss[ed] the unexhausted grounds" when he filed the second amended petition; he believed that the remaining three grounds were exhausted because he had submitted them to the California Supreme Court. (Id. at 2.) He did not understand "how to fully exhaust the lower courts or to put it in for review" because "Petitioner is not a lawyer or a student of law." (Id. at 4.)
It is true that Petitioner filed Nolden I prior to the expiration of the AEDPA statute of limitation, and he could have retained that filing date for his federal petition if he had successfully moved for a Rhines stay. Petitioner, however, never moved for a Rhines stay, despite the Court's explanation that he could do so. Petitioner presumably made this choice because he did not believe he needed a stay to pursue more exhaustion efforts; he believed that his claims were exhausted because he had presented them to the California Supreme Court.
As explained in Respondent's motion to dismiss and by the Court in Nolden I, presenting a claim to the California Supreme Court without stating a clear, factual basis, such that the California Supreme Court can neither understand the claim nor evaluate its merits, does not accomplish exhaustion. (Nolden I, Dkt. 30, 47, 52.) This is what occurred in Nolden I.
Specifically, the habeas petition that Petitioner filed in the California Supreme Court prior to Nolden I identified three grounds for relief: (1) "judicial error/misconduct," (2) "Deputy District Attorney Misconduct," and (3) "Attorney Misconduct," referring to Petitioner's trial attorney. (Nolden I, LD 3, Dkt. 31-3 at 6-7, 14.) Concerning judicial misconduct, Petitioner alleged that the trial judge "falsely charged" him with the underlying offense, imposed a "disproportionate" sentence, deprived him of a "full and fair hearing" (although Petitioner pleaded no contest), relied on an unidentified "erroneous factual statement by defense counsel," acted with bias, and failed to apply correctly Petitioner's credit for time served. (Id. at 6.) None of these allegations were supported by citations to the record or a complete explanation by Petitioner, and many were untethered to any federal basis for relief. (Id.)
Concerning prosecutorial misconduct, Petitioner alleged that the prosecutor (1) charged him under the wrong Penal Code section (without explaining the purported error), (2) used "insufficient evidence ... which made the proceedings unfair" (without explaining how), (3) acted outrageously, (4) "failed to inform defendant of elements rendering plea involuntary" (without explaining which elements of which counts he did not understand or how such information would have affected his decision to plead no contest), and (5) knew from probation reports that Petitioner "had not reported so therefore [he] had no idea of any terms and conditions" and could not fairly be charged with a probation violation. (Id. at 7.) Again, Plaintiff failed to support his accusations or explain how they affected his decision to accept the plea deal. Rather, he appears to have been arguing that the prosecutor should have offered a better plea deal than the one he accepted.
Concerning misconduct by his defense attorney, Petitioner argued that his attorney "kept insisting and severely pushing me to take a deal I had no idea about." (Id. at 14.) He argued that his lawyer should have investigated and disproved the allegation of a prior conviction, but he admitted in the same paragraph he "got out of custody January 10, 2013," prior to the crimes resulting in his 2014 plea deal/conviction. (Id.) He argued that his lawyer should not have "allowed" a special allegation/enhancement based on great bodily injury to his girlfriend to be charged. (Id.) He argued that his attorney "failed to collect potentially exculpatory evidence," without explaining what evidence he believed existed or how it would have affected his decision to plead no contest. (Id.)
Ultimately, the question is whether Petitioner is entitled to some equitable tolling for believing - erroneously - that his pre-Nolden I California Supreme Court petition exhausted his claims, a belief that was the basis for his consequent decision not to seek a Rhines stay in Nolden I.
If a petitioner delays his federal filing in reliance on a law that subsequently changes, he may be entitled to equitable tolling. See Lakey v. Hickman, 2011 U.S. App. LEXIS 490, at *11-12 (9th Cir. Cal. Jan. 5, 2011) (discussing cases), as amended at 633 F.3d 782 (2011). If, however, the state of the law is "settled" at the relevant time, then "legal confusion" cannot provides a basis for equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336 (2007); see also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (collecting cases from other circuits and holding that "a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance"); Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (observing that the equitable tolling "standard has never been satisfied by a petitioner's confusion or ignorance of the law alone"); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) ("a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling"). If a petitioner has any doubt about whether his state court filings will result in sufficient statutory tolling, then he should file a protective petition in federal court and seek a Rhines stay. Pace, 544 U.S. at 416-417 ("A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court.").
Since at least 1986, it has been settled law that "Swain is cited by the California Supreme Court to indicate that claims have not been alleged with sufficient particularity. That deficiency, when it exists, can be cured in a renewed petition." Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Failing to do so "leav[es] state remedies unexhausted." Id., citing Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974).
Here, Petitioner may have mistakenly believed that his claims were exhausted, such that he did not need to move for a Rhines stay, but such a mistake in the face of settled law to the contrary is not a ground for obtaining equitable tolling. See Sanchez v. Yates, 503 F. App'x 520, 522 (9th Cir. 2013) ("Sanchez does not qualify for equitable tolling because he was surprised by the California Supreme Court's ruling on timeliness grounds.") A state petitioner bears the risk that he may "try[] in good faith to exhaust state remedies" only to find out his later federal filing is untimely. Id. (citing Pace, 544 U.S. at 416).
Thus, Petitioner is not entitled to any equitable tolling. D. Actual Innocence.
There is also an equitable exception to the ADEPA's statute of limitations for prisoners who present new, reliable evidence of actual innocence. Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (citing Schlup v. Delo, 513 U.S. 298 (1995)); see also McQuiggin v. Perkins, 569 U.S. 383 (2013). Specifically, a petitioner must show "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327).
Petitioner does not set forth any new evidence or legal arguments attempting to satisfy this exception. He does not assert that he wants to revoke his plea deal or argue that he did not injure his girlfriend. He also does not argue that he did not violate his parole - only that it was unfair to charge him with a parole violation, because he did not know that committing a crime (i.e., abusing his girlfriend) was a parole violation. (Dkt. 31 at 5 ¶ 8(a) [First Amended Petition, arguing, "There should have never been any special allegation" based on a parole violation because "I never knew that I had to report or even what office to report to"].) This is not a claim of actual innocence. // // //
VI.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) denying Petitioner's stay motions (Dkt. 2, 19), and (3) directing that Judgment be entered dismissing the First Amended Petition and this action as untimely. DATED: August 31, 2018
/s/_________
KAREN E. SCOTT
United States Magistrate Judge