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Malo v. Tampkins

United States District Court, S.D. California

June 6, 2014

JIMMY SIMEONA MALO, Petitioner,
v.
CYNTHIA TAMPKINS, Warden, et al., Respondents.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

MARILYN L. HUFF, District Judge.

On October 2, 2013, Petitioner Jimmy Simeona Malo ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On January 7, 2014, Respondent Warden Cynthia Tampkins ("Respondent") filed a motion to dismiss. (Doc. No. 14.) On April 23, 2014, the magistrate judge issued a report and recommendation that the Court grant Respondent's motion to dismiss. (Doc. No. 17.) On May 19, 2014, Petitioner filed his objection to the report and recommendation. (Doc. No. 18.) For the following reasons, the Court grants Respondent's motion to dismiss and adopts the magistrate judge's report and recommendation.

I. Background

On October 16, 2006, Petitioner was charged with three charges of attempted murder and three charges of assault with a deadly weapon on a police officer. On November 2, 2006, a jury acquitted Petitioner of these charges but convicted him of the lesser included offenses of one count of attempted voluntary manslaughter and three counts of assault with a firearm on a peace officer. (Lodgment No. 4, People v. Malo, No. D051302, slip. op. at 5 (Cal.Ct.App. Dec. 2, 2008).) The Superior Court of San Diego County sentenced him to eleven years and eight months in prison plus $10, 000 in restitution. ( Id. at 6; Doc. No. 1 at 2.)

On March 19, 2008, Petitioner appealed his convictions to the California Court of Appeal. (Lodgment No. 1, Appellant's Opening Brief, People v. Malo, No. D051302 (Cal.Ct.App. Dec. 2, 2008).) On December 2, 2008, the court of appeal affirmed the judgment of the Superior Court of San Diego County. (Lodgment No. 4, People v. Malo, No. D051302, slip op. at 1.) On January 12, 2009, Petitioner filed a petition for review with the California Supreme Court. (Lodgment No. 5, Petition for Review, People v. Malo, [No. S169639] (Cal. Feb. 25, 2009).) On February 25, 2009, the California Supreme Court denied the petition for review. (Lodgment No. 6, People v. Malo, No. S169639, order (Cal. Feb. 25, 2009).)

On December 5, 2012, Petitioner filed his first petition for writ of habeas corpus in the San Diego County Superior Court. (Lodgment No. 7, Malo v. People, No. HCN 1265 (Cal. Super. Ct. filed Dec. 5, 2012) (petition for writ of habeas corpus at 3, 5, 6).) The petition alleged ineffective assistance of counsel, the imposition of an illegal sentence enhancement, and prosecutorial misconduct. (Id.) On December 28, 2012, the Superior Court denied the petition. (Lodgment No. 8, In re Malo, No. HCN 1265, order at 3 (Cal. Super. Ct. Dec. 28, 2012).) On January 28, 2013, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal on the same grounds raised in his petition to the superior court. (Lodgment No. 9, Malo v. People, [No. D063360] (Cal.Ct.App. filed Jan. 28, 2013) (petition for writ of habeas corpus at 3, 5, 6).) On March 7, 2013, the California Court of Appeal denied the petition. (Lodgment No. 10, In re Malo, No. D063360, order at 2 (Cal.Ct.App. Mar. 7, 2013).) On April 24, 2013, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court alleging ineffective assistance of counsel, an illegally enhanced sentence, and an illegal restitution fine. (Lodgment No. 11, Malo v. People, No. S210290 (Cal. Filed Apr. 24, 2013) (petition for writ of habeas corpus at 3, 6, 7).) On June 12, 2013, the California Supreme Court denied the petition. (Lodgment No. 12, In re Malo, No. S210290, order (Cal. June 12, 2013).) On September 25, 2013, Petitioner filed his federal petition in the District Court for the Southern District of California making the same arguments based on ineffective assistance of counsel, Petitioner's sentence enhancement, and Petitioner's restitution fine. (Doc. No. 1).

On January 7, 2014, Respondent filed a Motion to Dismiss and Notice of Lodgment. (Doc. Nos. 14, 15.) Respondent's motion argues that (1) Petitioner's claims based on his sentencing enhancement and restitution fine fail to state a claim because they are not based on federal constitutional rights; (2) procedural default bars relief on Petitioner's claims based on his sentencing enhancement and restitution fine; and (3) all of Petitioner's claims are untimely. (Doc. No. 14-1 at 10, 11, 15.) In his Opposition, Petitioner claims that (1) his claims based on his sentencing enhancement and restitution fine are premised on his constitutional rights, (2) his claims are not procedurally defaulted because he has shown cause and prejudice for his delay in raising them in state court and (3) his claims are timely because he is entitled to statutory and equitable tolling. (Doc. No. 16. at 1-8.) On April 23, 2014, the magistrate judge issued a report and recommendation to dismiss the petition for writ of habeas corpus. (Doc. No. 17.)

II. Legal Standards

A. Legal Standard of Review Under AEDPA

A district 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). If a party objects to any portion of the report, the district court must "make a de novo determination of those portions of the report... to which objection is made." Id.

A federal court may review a petition for writ of habeas corpus by a person in custody following a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Id .; accord Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Habeas corpus is an "extraordinary remedy" available only to those "persons whom society has grievously wronged and for whom belated liberation is little enough compensation." Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005) (quoting Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)). Because Petitioner filed his petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the petition. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). Indeed, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id . Federal habeas relief is available, but only if the result of a federal claim the state court adjudicated on the merits is "contrary to, " or "an unreasonable application" of United States Supreme Court precedent, or if the adjudication is "an unreasonable determination" based on the facts and evidence. 28 U.S.C. §§ 2254(d)(1) and 2254(d)(2).

A federal court may grant habeas relief under the "contrary to" clause of § 2254(d)(1) if a state court either "applies a rule that contradicts the governing law set forth in [the United States Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Early v. Packer, 537 U.S. 3, 8 (2002); see also Williams, 529 U.S. at 405-06 (distinguishing the "contrary to" and the "unreasonable application" standards). "[R]eview under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

A federal court may grant habeas relief under the "unreasonable application" clause of § 2254(d)(1) if the state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407. A federal court may also grant habeas relief "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id . The state court's "unreasonable application" of binding precedent must be objectively unreasonable to the extent that the state court decision is more than merely incorrect or erroneous. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citation omitted); see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).

Additionally, even if a state court decision is contrary to United States Supreme Court precedent or rests on an unreasonable determination of facts in light of the evidence, the petitioner must show that such error caused substantial or injurious prejudice. Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht, 507 U.S. at 637-38); see Fry v. Pliler, 551 U.S. 112, 121-22 (2007). AEDPA creates a highly deferential standard toward state court ...


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