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United States District Court, S.D. California

September 16, 2005.

G.J. GIURBINO, Warden, Respondent.

The opinion of the court was delivered by: WILLIAM McCURINE Jr., Magistrate Judge

Eduardo Guerra Petett ("Petett" or "Petitioner"), a state prisoner proceeding pro se and in forma pauperis, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). Respondent has filed a Motion to Dismiss, with an attached Memorandum of Points and Authorities, arguing that the Petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Doc. No. 7.) Petitioner has not filed an opposition or otherwise responded to the Motion to Dismiss.

This Report and Recommendation is submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California. For the reasons stated herein, the Court recommends that the Motion to Dismiss be GRANTED and the Petition be DISMISSED. I.


  On October 6, 1987, Petitioner was convicted by a San Diego County Superior Court jury of second degree murder in violation of California Penal Code § 187. The jury found that Petitioner had used a deadly weapon within the meaning of California Penal Code § 12022(b). (Mot. to Dismiss, Ex. A, People v. Petett, No. D007360, slip op. at 1 (Cal.Ct.App. April 17, 1990).) He was sentenced to a prison term of sixteen years. (Id.)

  Petitioner appealed his conviction, claiming that the trial court erred in (1) admitting evidence of his previous possession and use of knives (2) admitting evidence of his past use of cocaine, and (3) that the loss of the reporter's notes from the first day of trial prevented a meaningful review of his conviction. (Id. at 6, 15) The appellate court affirmed Petitioner's conviction in an unpublished opinion filed April 17, 1990. (Id.) Petitioner did not seek review in the California Supreme Court.

  Petett filed a petition for writ of habeas corpus with the California Supreme Court on March 4, 2004,*fn1 arguing that the appellate court violated his due process and equal protection rights in affirming his conviction, and explaining that his petition "should not be time barred as [the] claim is based on a new clarifying statute proving innocence." (Mot. to Dismiss, Ex. B at 3; Pet., Ex. A at 3.) That petition was denied on January 19, 2005. (Mot. to Dismiss, Ex. C, In re Petett on Habeas Corpus, No. S123354, slip op. at 1 (Cal. Jan. 19, 2005).)



  Petett filed the instant federal Petition on March 9, 2005.*fn2 (Pet. at 7.) Petitioner bases the Petition on the same grounds raised in his state habeas corpus petition, and further questions whether the California Supreme Court's denial of his petition was proper. (Id. at 5-6.) Petitioner claims that his rights were violated because a witness who testified at his 1987 trial, Ricardo Tartaglia, was coached to lie by the prosecution. (Pet. at 5.) Petitioner claims that the appellate court erred in affirming his conviction in light of the prosecution's misconduct. (Id. at 6.) In addition, Petitioner asserts that the California Supreme Court's denial of his state habeas petition violates his right to a fair trial and is contrary to federal law. (Id. at 5.)

  On May 25, 2005, Respondent filed a Motion to Dismiss on the grounds the Petition is barred by the applicable statute of limitations set forth in 28 U.S.C. § 2244(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Mot. to Dismiss at 1, 6.) Petitioner has not filed a response.



  The following statement of facts is taken from the state appellate court opinion affirming Petitioner's conviction. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts).


In April 1987 Carmen Martinez and Jesus Quijas, who were husband and wife, separated because of marital problems, including physical abuse inflicted by Quijas upon Martinez. Petett and his wife Amanda assisted Martinez in moving out, put her up for one night before she moved to Los Angeles and helped her move her furniture into storage. The furniture had been broken and slashed with a knife, apparently by Quijas.
On the morning of May 4, approximately one week after Martinez had moved out, Quijas and another man arrived at Petett's apartment. Quijas knocked loudly on the door and tried to convince Amanda Petett to let him in. Amanda, who thought Quijas was drunk, refused to let Quijas in and told him Martinez was not there. As Quijas left, he shouted an obscenity at Petett. An angry Petett, fearing Quijas would damage his car, put a hammer in a plastic bag to simulate a gun and followed Quijas down the stairs from the apartment. At the bottom of the stairway, Petett told Quijas to stop bothering him and his wife and offered to let Quijas search the apartment for Martinez. Petett testified Quijias approached him with his hand in his pocket; Petett said he pushed Quijas to prevent him from coming nearer. At that point, the apartment manager, Jolene Pickens, observed Quijas and Petett shouting and pushing each other, and told Quijas and his companion to leave.
At approximately 6 p.m. that day, Petett was returning to the apartment complex with his wife and a friend, Aurora Salcedo Jimenez, when they observed Quijas and his companion outside the complex. Petett exclaimed in Spanish that Quijas had returned. Quijas began pounding on the door of an apartment, yelling "Adrian," a nickname Petett goes by. The next-door neighbor, Diana Tartaglia, testified Quijas appeared angry and drunk. Her seven-year-old son, Ricardo, offered to direct Quijas to Petett's apartment. As Ricardo and Quijas descended the stairs, the boy's father, Renato Tartaglia, emerged from his apartment, concerned about Quijas's excited behavior. After Petett parked his car, he removed a knife from under his car seat and entered the complex. Petett approached Quijas as he and Ricardo Tartaglia reached the bottom of the stairway.
Ricardo and his parents testified Petett removed a knife from his pocket, and, after arguing with Quijas, stabbed him once in the chest. All three of the Tartaglias testified that Quijas did not advance upon Petett; Renato Tartaglia said Quijas "kind of froze." Ricardo also testified he saw Petett put the knife back in his pocket, remove another knife and throw it to the ground near Quijas's body. However, Ricardo had not mentioned the second knife in earlier accounts of the incident; he also testified the prosecutor had told him what to say during a break just prior to his testimony regarding the second knife. Diana Tartaglia testified she saw a knife fall to the ground after the stabbing but was unable to say who dropped the knife. Renato Tartaglia testified he did not observe a knife in Quijas's hand before the stabbing; however, from his vantage point, he was unable to see Quijas's right hand.
Quijas died from a single stab wound to the heart.
(Mot. to Dismiss, Ex. A, People v. Petett, No. D007360, slip op. at 2-4.)



  Respondent moves to dismiss the Petition pursuant to the one-year statute of limitations contained in 28 U.S.C. § 2244(d). As amended by AEDPA, 28 U.S.C. § 2244(d) provides a one-year limitation period for a state prisoner's federal habeas application. 28 U.S.C. § 2244(d)(1). This one-year period runs from the latest of:

(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;
(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 removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2244(d)(1) (West Supp. 2005).

  For convictions which became final prior to the enactment of AEDPA, a one-year grace period was provided for those prisoners to file a habeas petition. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). This grace period expired on April 24, 1997. Id. at 1246. A. Principal Trigger Date is Completion of Direct Review

  To determine if Petitioner's filing is barred by the one-year limitation, one must first determine when the statute of limitations began to run. Petitioner did not appeal his conviction to the California Supreme Court. Therefore, under subdivision (A) of 28 U.S.C. § 2244(d)(1),*fn3 his conviction became final on May 27, 1990, forty days after the appellate court affirmed the judgment on April 17, 1990. Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002). Because the judgment was finalized prior to the enactment of AEDPA, the one-year grace period applies. Patterson, 251 F.3d at 1245. As such, absent tolling, Petitioner's limitations period expired on April 24, 1997. Id. at 1246.

  Subdivisions (B) through (D) do not apply based on the facts of this case. Petitioner has not asserted any facts to indicate that he was prevented from filing his Petition due to an impediment. Additionally, although Petett indicates the Petition should not be time-barred due to People v. Maciel, 113 Cal.App.4th 679 (2003), that decision does not determine the trigger date of Petitioner's limitations period as it is not the initial recognition of a constitutional right by the Supreme Court. As discussed below, Maciel upholds California Penal Code § 422*fn4 as constitutional, but does not recognize any new constitutional rights that would bring Petitioner's claims under subdivision (C). Furthermore, as detailed below, because the facts forming the basis for Petitioner's claims are statements made at his 1987 trial, he cannot now claim that, as provided by subdivision (D), he only recently discovered or should have discovered those facts. Petitioner's claim that the California Supreme Court erred in denying his state petition on January 19, 2005, is not a new fact causing the limitations period to begin running because the facts forming the basis for that petition arose from the alleged prosecutorial misconduct at the 1987 trial. Therefore, subdivision (A) determines the trigger date for the commencement of Petitioner's one-year statute of limitations. B. Statutory Tolling Does Not Extend the Limitations Period

  The one-year statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2).

  As discussed above, Petitioner's limitations period is determined by the one-year grace period provided by AEDPA because his conviction became final prior to the enactment of AEDPA. Patterson, 251 F.3d at 1245. Because Petitioner did not file his state petition until March 9, 2004, several years after the grace period had passed, statutory tolling does not extend Petitioner's limitation period beyond April 24, 1997. Id. at 1246. Therefore, the Petition is untimely under AEDPA's statute of limitations unless equitable tolling extends the limitations period.

  C. Equitable Tolling Does Not Extend the Limitations Period

  AEDPA's statute of limitations period may be subject to equitable tolling. Calderson v. United States Dist. Court ("Beeler"), 128 F.3d 1283, 1288 (9th Cir. 1997) (overruled on other grounds by Calderson v. United States Dist. Court ("Kelly"), 163 F.3d 530, 540 (9th Cir. 1998)). However, the Ninth Circuit in Beeler noted that "equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)). The Beeler court held that district judges must "take seriously Congress's desire to accelerate the federal habeas process" and "only authorize extensions when this high hurdle is surmounted." Id. at 1289.

  1) Lack of Attorney Fees

  Petitioner contends that he was delayed in filing his petition due to lack of attorney's fees and his inability to receive free legal help. (Pet., Ex. A at 6). This argument, however, is not enough to overcome the "high hurdle" to justify equitable tolling. For equitable tolling to apply, the petitioner must show that extraordinary circumstances were the cause of his untimely filing. Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005). A prisoner has no right to assistance of counsel in filing a habeas petition. Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1990); see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (holding that equitable tolling does not apply when an attorney erroneously advises a prisoner as to the date by which a habeas petition must be filed). In Pennsylvania v. Finley, 481 U.S. 551 (1987), the Supreme Court held that a defendant has no constitutional right to counsel for any discretionary appeals or to attack a final conviction that has already gone through the appellate process. Id. at 555. The Court stated that the right to counsel is limited only to the appeal of first right, and is not required for discretionary appeals. Id. at 554-55. As such, the state is not obligated to provide the prisoner with an attorney to pursue a habeas petition. Id. at 557. Thus, in the instant case, Petitioner's lack of attorney fees and inability to find free legal help does not constitute an extraordinary circumstance justifying equitable tolling since Petitioner is not entitled to the assistance of counsel. More significantly, the habeas petitions filed in this court and in the state Supreme Court by Petitioner pro se contradict the contention that he was unable to timely file a habeas petition without legal assistance. Both petitions adequately articulate the claims Petitioner presents and the facts in support of those claims. Had the petitions been timely filed, they would have sufficed to present Petitioner's claims.

  2) Actual Innocence

  Petitioner further contends that the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995), overcomes his untimeliness. (Pet., Ex. A at 30). Petitioner states that his "writ should not be time barred, as claim is based on new clarifying statute proving innocence." (Pet. at 6.) The alleged constitutional errors identified by Petitioner in support of his claim of actual innocence are identified as follows: (1) The prosecution coached a witness, Ricardo Tartaglia, to testify falsely against Petitioner; and (2) the court's decision in Maciel shows that the deceased was responsible for his own death; and, Petitioner, being the threatened party, did not have the requisite intent. (Pet., Ex. A at 11-12.)

  The Ninth Circuit has left open the question of whether a petitioner who has satisfied the Schlup standard is permitted to proceed despite failing to meet the one-year statute of limitations. Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2003). However, because Petitioner fails to meet the Schlup standard of actual innocence, the Court does not need to address the question of whether a colorable claim of actual innocence would excuse Petitioner's untimeliness. Petitioner claims that Tartaglia, a prosecution witness, was told to lie in his testimony at trial, thereby violating Petitioner's right to a fair trial. (Pet. at 5.) Petitioner bases this claim on Tartaglia's statement during his testimony in the 1987 trial that the prosecutor had "told him what to say." (Pet., Ex. A at 8.) As discussed by the court in Schlup, in order to meet the standard "the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327. New evidence is defined as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324. Petitioner's claim that the prosecution coached Tartaglia to lie does not constitute new evidence, and does not meet the Schlup standard for actual innocence because it is based solely on Tartaglia's statement at trial in 1987. (Pet., Ex. A at 8.) The appellate court even noted this evidence in the statement of facts in its 1990 unpublished opinion. (Mot. to Dismiss, Ex. A, People v. Petett, No. D007360, slip op. at 3-4.) Furthermore, it cannot be said that no reasonable juror would have convicted Petitioner based on that evidence since, clearly, the jury found Petitioner guilty at trial after examining all the evidence presented, including the testimony Petitioner's claim is based upon. Therefore, Petitioner's evidence of the prosecution's alleged misconduct is not new evidence that would satisfy the Schlup standard and avoid the statute of limitations bar.

  Petitioner further contends that equitable tolling should apply because the Maciel decision clarified a statute that justifies his killing the decedent. (Pet. at 5.) California Penal Code § 422 addresses the crime of criminal threats:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished . . .
Cal. Penal Code § 422 (West 1999). Petitioner argues that because the deceased threatened him pursuant to the definition and requirements of California Penal Code § 422, Petitioner was justified in killing the deceased. (Pet., Ex. A at 9-11). In the published portion of the decision, the Maciel court upheld California Penal Code § 422 as constitutional, and discussed the requirements for criminal threats under that statute. Maciel, 113 Cal.App.4th at 682-83. Petitioner contends that Maciel clarifies California Penal Code § 422, thereby absolving him of guilt because the deceased threatened him. (Pet., Ex. A at 11.) The defendant in Maciel challenged the constitutionality of California Penal Code § 422 on the basis of vagueness. Maciel, 113 Cal.App.4th at 685. However, in deciding the defendant's claim, Maciel does not seek to clarify any of the requirements for criminal threats under § 422; instead, the court simply held that the statute was not unconstitutionally vague. Id. at 682. Nothing in the Maciel decision points to any new support for Petitioner's innocence or proof of the deceased's alleged criminal threats. As such, the Maciel decision fails to prove Petitioner's innocence under the Schlup standard, and does not support equitable tolling of the one-year statute of limitations.



  For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order GRANTING Respondent's Motion to Dismiss and DISMISSING the Petition for Writ of Habeas Corpus as untimely.

  IT IS ORDERED that no later than October 14, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." As Petitioner did not file a response to Respondent's Motion to Dismiss, Petitioner may use this opportunity to raise facts supporting why AEDPA's statute of limitations should be equitably tolled.

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than October 28, 2005. The parties are advised that failure to file objections within the specified time may result in a waiver of the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); see also Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).



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