The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 61]; (2) DENYING FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS [Doc. No. 37]; AND, (3) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a First Amended Petition ["FAP"] for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 37.) Petitioner is challenging his San Diego County Superior Court conviction on twelve counts of armed robbery, the finding that he suffered three prior serious felony convictions which constituted "strikes" under California's Three Strikes law, and the use of those prior convictions to enhance his sentence of 255 years-to-life in state prison. (FAP at 1.) Petitioner claimed in his Original Petition that his federal Constitutional rights were violated by: (1) the trial court's failure to limit the cross-admissibility of certain evidence; (2) the failure of the prosecutor to provide notice regarding the factual basis for one of the prior felony convictions; (3) the use of the prior felony convictions to enhance his sentence in violation of contract principles; (4) the dual use of the prior felony convictions in sentencing; and (5) ineffective assistance of appellate counsel. (Pet. at 8-9.) Petitioner presents these same claims in the FAP, but adds new claims alleging that his federal due process rights were violated by: (6) the use of a prior Oregon conviction to enhance his sentence because it does not establish the necessary elements of a similar offense under California law; (7) the lack of sufficient evidence to establish one of his prior convictions; and (8) violation of double jeopardy principles regarding two of the prior convictions. (FAP at 29-34.)
Respondent has filed an Answer. (Doc. No. 43.) Respondent reiterates the argument made in the Motion to Dismiss the Original Petition, which was rejected by the Court, that this action was commenced after expiration of the one-year statute of limitations. (Memorandum of Points and Authorities in Support of Answer ["Ans. Mem."] at 13-15.) Respondent also contends that claims four through eight were denied by the state courts as untimely and successive, and are therefore procedurally defaulted in this Court, and that all of Petitioner's claims lack merit. (Id. at 16- 28.) Petitioner has filed a Traverse. (Doc. No. 59.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Anthony J. Battaglia, which finds that the FAP is timely, that claims four though eight are procedurally defaulted, and that claims one through three fail on their merits. (Doc. No. 61.) Petitioner has filed objections to the R&R. (Doc. No. 68.)
The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court ADOPTS the Magistrate Judge's findings regarding the statute of limitations, DECLINES TO ADOPT the findings regarding procedural default, ADOPTS the findings denying claims one through three, DENIES the FAP on the merits of all claims presented, and ISSUES a Certificate of Appealability as to all claims presented.
I. Statute of Limitations
Respondent initially moved to dismiss the Original Petition on the basis that it was filed after expiration of the one-year statute of limitations, and on the basis that Petitioner had failed to exhaust his state court remedies with respect to claim four. (Doc. No. 7.) The Court adopted the finding by the Magistrate Judge in the initial R&R issued in this matter on January 25, 2008, that the Original Petition had been filed within the one-year statute of limitations. (See Order filed 3/12/08 [Doc. No. 30] at 4; R&R filed 1/25/08 [Doc. No. 24] at 4-7.) The Court found that claim four was unexhausted, but held this action in abeyance until exhaustion of that claim, which was at that time pending in the state supreme court. (Order filed 3/12/08 at 4-7.) Petitioner subsequently filed the FAP, which contains the previously exhausted claims one through three, the newly exhausted claim four, and newly exhausted claims six through eight.
In the Answer to the FAP, Respondent once again raises the statute of limitations defense. Respondent "recognizes that this Court has already rejected its argument that the petition for writ of habeas corpus is beyond AEDPA's statute of limitations.... However, it is being reasserted in Respondent's answer to preserve it for appeal, if necessary." (Ans. Mem. at 13 n.6.) Respondent goes on to repeat the argument raised in the Motion to Dismiss that Petitioner was not entitled to statutory tolling of the limitations period while his first state supreme court habeas petition was pending, because the state supreme court denied that petition with a citation to In re Clark, 5 Cal. 4th 750 (1993). (Ans. Mem. at 14-15.) The Court rejected that contention, finding that the state supreme court's failure to provide a citation to a specific page of the Clark opinion was a failure to clearly indicate that the petition was rejected as untimely, and may have been a reference to the other procedural bars discussed in the Clark opinion. (See Order filed 3/12/08 at 4; R&R filed 1/25/08 at 4-7.) Rather, the Court found that the short delay in presenting the habeas petition to the state supreme court after the denial of the same petition by the appellate court precluded a finding by this Court that the petition was untimely under state law and therefore neither "properly filed" nor "pending" within the meaning of 28 U.S.C. § 2244(d). (Id.) Although Respondent repeats the argument that the Original Petition was untimely for that reason, Respondent does not argue that the FAP, which is now the operative pleading in this action, is untimely, and in fact indicates that the newly-exhausted claims do not "factor in the overall timeliness of Petitioner's instant petition." (Ans. Mem. at 13-15 & n. 6.) Because, as discussed below, whether the newly-exhausted claims in the FAP relate back to the filing date of the Original Petition is determinative as to whether the newly-exhausted claims are timely, Respondent has likely waived the statute of limitations defense both here and on appeal.*fn1
The Court may reach the statute of limitations issue regardless of whether it has been waived. Day v. McDonough, 547 U.S. 198, 209-10 (2006). The Court finds that claims one, two, three and five in the FAP are timely for the reasons set forth in its previous Order. (See Order filed 3/12/08 at 4; R&R filed 1/25/08 at 4-7.) These claims were either raised on direct appeal or were presented during Petitioner's timely first round of state post-conviction review. (Lodgment Nos. 2, 6.) However, claims four, six, seven and eight were not presented to the state courts either on direct appeal or during the first full round of post-conviction collateral review. Rather, claim four was presented to the state supreme court in a habeas petition filed on October 29, 2007, while this action was pending. (Lodgment No. 13.) Claims six, seven and eight were presented to the state supreme court in a habeas petition filed December 5, 2007, also while this action was pending. (Lodgment No. 11.)
The Magistrate Judge found that the FAP related back to the filing of the Original Petition, and was therefore timely, "because the amended pleading asserts substantially the same grounds for relief." (R&R at 13 n. 6.) The Court adopts this finding. Petitioner exhausted his state court remedies with respect to claims four, six, seven and eight after he initiated this action, and well after the one-year statute of limitations expired. However, all of those claims involve issues regarding the use of prior convictions to enhance Petitioner's sentence. (FAP at 25, 29-34.) The Supreme Court has stated that "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." Mayle v. Felix, 545 U.S. 644, 664 (2005). The timely-presented claims in the Original Petition are tied to a common core of operative facts with the newly exhausted claims. These include ineffective assistance of appellate counsel for not investigating and raising issues regarding the use of the prior convictions to enhance Petitioner's sentence (claim five), a claim alleging that the prosecutor failed to provide notice regarding the factual basis for one of the prior felony convictions (claim two), and a claim alleging that the use of the prior felony convictions to enhance the sentence violated contract principles (claim three). (Pet. at 7-9.)
The newly-exhausted claims were all presented to the state supreme court over two years after the conclusion of direct review, and over eight months after the conclusion of Petitioner's first full round of state post-conviction review. As discussed in more detail below with respect to procedural default, the new claims were likely found by the state supreme court to be untimely due to the citation to page 780 of the Robbins opinion. See In re Robbins, 18 Cal. 4th 770, 780 (1998) (setting forth "analytical framework governing our timeliness determination."). However, the timeliness under state law of these new claims is relevant only to whether statutory tolling is available, and, as discussed below, whether those claims are procedurally defaulted in this Court. Claims four, six, seven and eight are timely filed in this Court, not because the limitations period was tolled by the state petitions which contained these claims, but because they relate back to the timely filed Original Petition. Mayle, 545 U.S. at 664; King v. Ryan, 564 F.3d 1133, 1142 (9th Cir. 2009) (holding that Mayle "requires a comparison of a petitioner's new claims to the properly exhausted claims left pending in" the original petition.), cert. denied, __S.Ct.__, 2009 WL 1980821 (Oct. 5, 2009). The Court ADOPTS the finding in the R&R, to which Respondent has not objected, that all claims in the FAP are timely.
Respondent contends that claims four through eight are procedurally defaulted because the citation to Clark indicates that the petitions in which the claims were raised were denied as untimely and successive, and the citation to Robbins indicates the petitions were untimely. (Ans. Mem. at 16.) Petitioner replies that his claims were presented to the state courts in a timely fashion and in a procedurally correct manner, and are not procedurally defaulted in this Court.
(Memorandum of Points and Authorities in Support of Traverse ["Traverse Mem."] at 9-11.) Petitioner also contends that California's bars against untimely and successive petitions are neither clearly established nor consistently applied, and that Respondent has ...