United States District Court, C.D. California, Western Division
December 18, 2014
MARCOS CERAS, Petitioner,
G. J. JANDA, Warden, Respondent
Marcos Ceras, Petitioner, Pro se, Calipatria, CA.
ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
ARTHUR NAKAZATO, UNITED STATES MAGISTRATE JUDGE.
Before the Court is a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (" Petition") brought by Marcos Ceras (" Petitioner"), a state prisoner proceeding pro se . Petitioner was convicted, following a jury trial in the California Superior Court for Los Angeles County, of attempted murder, shooting at an inhabited dwelling, and assault with a firearm, with findings that he personally fired a gun and personally inflicted great bodily injury. Petitioner was sentenced to a term of ten years and eight months, plus fifty years to life, in state prison (case no. PA047668).
The pending Petition raises six claims challenging Petitioner's judgment of conviction. For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is time-barred and the claims are procedurally defaulted.
2.1 Standard of Review
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (" Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to " promptly examine" a habeas petition and " [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court also provides " [t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2.
An untimely habeas petition may be dismissed sua sponte if the court gives the petitioner adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).
As for procedural default, " a habeas court . . . should exercise its discretion to raise procedural default sua sponte if doing so furthers" the interests of comity, federalism, and judicial efficiency. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); see also Windham v. Merkle, 163 F.3d 1092, 1100-01 (9th Cir. 1998). This principle " applies with even stronger force where, as here, the State has not waived the defense" because it has not yet been served with the petition or filed any response. Boyd, 147 F.3d at 1128. Where the procedural default is " easily identifiable on the face of the petition, " it would " waste scarce judicial resources for the district court to cause the facially defective petition to be served on the State and to entertain the State's ensuing motion to dismiss." Id. However, before summarily dismissing a petition as procedurally defaulted, the court must give a petitioner notice of the procedural default and an opportunity to respond, and must make clear to a pro se petitioner the procedural default at issue and the consequences for failing to respond. Id.
2.2 Statute of Limitations
The Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period is triggered by " the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The Petition and Petitioner's relevant state court records establish the following facts. Petitioner was sentenced for the above offenses on March 23, 2012. On April 17, 2013, the California Court of Appeal affirmed the judgment (case no. B240200). The California Supreme Court then denied review of the court of appeal's decision on July 10, 2013 (case no. S210801). Petitioner does not allege, and it does not appear, that he filed a petition for certiorari in the United States Supreme Court. (Pet. at 2-3; state court records; see also Supreme Court Docket, available on the Internet at http://www.supremecourt.gov.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on October 8 2013, the ninetieth day after the state high court denied his petition for review and the last day for him to file a petition for certiorari with the Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of limitations then started to run the next day, on October 9, 2013, and ended on October 9, 2014. 28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day after the triggering event under Fed.R.Civ.P. 6(a)). Petitioner did not constructively file his pending Petition until November 19, 2014 -- forty-one days after the expiration of the limitations period.
Accordingly, absent some basis for tolling or an alternative start date to the limitations period under 28 U.S.C. § 2244(d)(1), the pending Petition is time-barred.
2.2.1 Statutory Tolling
AEDPA includes a statutory tolling provision that suspends the limitations period for the time during which a " properly-filed" application for post-conviction or other collateral review is " pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). An application is " pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). The Court finds Petitioner is not entitled to statutory tolling for the reasons set forth below.
188.8.131.52 Background Facts
Petitioner's state court records and the exhibits to his Petition establish he has filed two state habeas petitions, one in the superior court (case no. PA047668) and one in the California Court of Appeal (case no. B259109). (Pet. at 3-4; Appendix to the Petition (" App.") C; state court records.) Petitioner also claims to have filed a third habeas petition in the California Supreme Court, which is currently pending. (Pet. at 3, 9.) However, Petitioner has failed to provide a filing date or case number for that alleged petition, and his state court records do not reflect any habeas petition being filed in the California Supreme Court. (Pet. at 4, 9; state court records.) Therefore, absent evidence to the contrary, the Court finds Petitioner has only filed two state habeas petitions. See Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) (the petitioner " bears the burden of proving that the statute of limitation was tolled.").
The first of Petitioner's state habeas petitions was constructively filed on July 16, 2014, and denied on July 23, 2014. (Pet. at 3; App. C); see also Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (the prison mailbox rule applies to pro se state habeas petitions). The superior court denied that petition on the following grounds: (1) " Petitioner has failed to explain and justify the significant delay in seeking habeas relief, " with a citation to In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993); (2) issues raised in Petitioner's habeas petition could have been raised on direct appeal, with citations to In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993); and In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953); (3) state habeas review is unavailable to assess the credibility of trial witnesses or re-weigh the evidence; and (4) Petitioner's ineffective assistance of counsel (" IAC") claims lacked merit. (App. C.)
Petitioner filed his second state habeas petition in the California Court of Appeal on September 30, 2014 (case no. B259109). (State court records., The state court of appeal denied that petition on October 29, 2014, with the following comment:
The petition is denied without prejudice to [P]etitioner's filing a new petition in the Los Angeles Superior Court that includes: (1) a declaration from trial counsel, or (2) if trial counsel does not respond to petitioner within a reasonable amount of time, then [P]etitioner's own declaration explaining how petitioner has attempted to contact trial counsel and the results of those attempts, with supporting documentation.
(State court records.) There is no indication in the pending Petition whether Petitioner has re-filed a habeas petition in the superior court.
184.108.40.206.1 First State Habeas Petition
Petitioner is not entitled to statutory tolling for the pendency of his first state habeas petition in the superior court because that petition was not " properly filed" for purposes of AEDPA's statutory tolling provision. Specifically, that petition was not " properly filed" because it was expressly denied by the superior court as untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Allen v. Siebert, 552 U.S. 3, 7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (" We . . . reiterate now what we held in Pace : When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).") (internal quotation marks, brackets, and citation omitted); Lakey v. Hickman, 633 F.3d 782, 785-86 (9th Cir. 2011) (" [W]e have consistently held that statutory tolling is unavailable where a state habeas petition is deemed untimely under California's timeliness standards.") (internal quotation marks and citation omitted); see also Walker v. Martin, 562 U.S. 307, 131 S.Ct. 1120, 1124, 179 L.Ed.2d 62 (2011) (" California courts signal that a habeas petition is denied as untimely by citing the controlling decisions, i.e., Clark and Robbins .").
Further, this result is unaltered by the fact that the superior court alternatively denied some claims on the merits. See Bonner, 425 F.3d at 1148-49 (" [T]he fact that the superior court also denied [the petitioner's] petition on the merits [does not] save his petition. Because the California courts dismissed [the petitioner's] petition as untimely, his petition was not 'properly filed' under AEDPA. Accordingly, he is not entitled to tolling under § 2244(d)(2)."); see also Saffold, 536 U.S. at 225-26 (" A court will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief.").
Additionally, while the Ninth Circuit has pointed to two situations in which the higher state court's subsequent decision can overrule the lower court's determination of untimeliness, this Court finds neither situation is presented here. First, a higher state court may expressly overrule a lower court's timeliness determination. See Campbell v. Henry, 614 F.3d 1056, 1061 (9th Cir. 2010) (where the California Court of Appeal's order expressly stated that one of the claims was " not subject to the bar of untimeliness" under state law, the " earlier incorrect determination by the Superior Court that the claim was untimely is thus of no force or effect."). However, here, the California Court of Appeal's denial of Petitioner's second state habeas petition did not include any substantive comment. Walker, 131 S.Ct. at 1124 (" A spare order denying a petition without explanation or citation ordinarily ranks as a disposition on the merits. (Citations omitted.) California courts may elect to pretermit the question whether a petition is timely and simply deny the petition, thereby signaling that the petition lacks merit."). Consequently, the superior court's untimeliness ruling in this case was not expressly overruled. See Evans v. Chavis, 546 U.S. 189, 194, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006) (" If the appearance of the words 'on the merits' does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely.").
Second, in Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011), a three-judge panel of the Ninth Circuit found that, even without presuming that a state court's summary denial meant the court found a habeas petition timely, there were nevertheless " compelling factual circumstances" in that case " signaling that the [higher state court] did consider and reject the State's timeliness argument." Specifically, Trigueros found the higher state court impliedly overruled the lower court's untimeliness finding because, prior to the higher court's summary denial: (1) the higher court requested informal briefing on the merits, which was " highly significant"; and (2) the parties briefed the timeliness issue in the higher court, and therefore, that court " had before it all of the timeliness arguments from the parties." Id. at 990-91. However, neither of Trigueros 's " compelling" or " highly significant" circumstances existed here. The California Court of Appeal did not order any briefing on any issue; indeed, that court's only action was to deny the petition less than a month after it was filed without substantive comment or any citations. (State court records.)
Moreover, the fact that the California Court of Appeal denied the second petition without prejudice to Petitioner " filing a new petition in the Los Angeles Superior Court" is also not an indication that the court impliedly found the petition timely or overruled the superior court's untimeliness ruling. Very significantly, the court of appeal's denial was without prejudice only as to Petitioner's IAC claims - the very claims the superior court denied on the merits despite finding the first petition untimely. (App. C; state court records.) The court of appeal's ruling was not inconsistent with the superior court's untimeliness ruling at all, as the superior court's order denying the first petition indicates it would again consider Petitioner's IAC claims on the merits despite the fact the petition was untimely. See Saffold, 536 U.S. at 225-26.
Based upon the foregoing, the Court finds Trigueros is distinguishable and inapplicable here, and that nothing in the court of appeal's order expressly or impliedly overruled the superior court's ruling that Petitioner's first state habeas petition was untimely under state law.
Lastly, Petitioner argues the superior court's ruling that his first petition was untimely was erroneous because that petition was filed while the AEDPA limitations period was still running. ( See Motion for Stay  at 2.) Petitioner's argument is rejected. AEDPA governs only the filing of federal habeas petitions, but under California's timeliness standard, " a [habeas] petition should be filed as promptly as the circumstances allow." In re Clark, 5 Cal.4th at 765 n. 5. Put another way, a prisoner must seek habeas relief without " substantial delay." In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). Notably here, the timeliness of a state habeas petition is " measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim." Id. Because the delay is measured from when the petitioner knew of the grounds for relief, " [t]hat time may be as early as the date of conviction." In re Clark, 5 Cal.4th at 765 n. 5.
Here, the superior court found that Petitioner's claims could have been raised in his direct appeal, which was denied on April 17, 2013, approximately fifteen months before he raised them in a state habeas petition. (App. C; state court records.) Moreover, to the extent Petitioner raised the same claims in that petition which he raises here - ineffective assistance of trial counsel, the denial of his right to present a defense, Batson error, and cumulative trial error - he should reasonably have discovered these grounds as early as his date of conviction. In re Clark, 5 Cal.4th at 765 n. 5; In re Robbins, 18 Cal.4th at 780. Consequently, this Court finds the superior court's untimeliness ruling was reasonable, and Petitioner's argument to the contrary is rejected.
Based upon the foregoing, Petitioner is not entitled to statutory tolling for the pendency of his first state habeas petition, because that petition was not " properly filed." Pace, 544 U.S. at 414; Allen, 552 U.S. at 7; Lakey, 633 F.3d at 785-86.
220.127.116.11.2 Interval Tolling
On state collateral review, " intervals between a lower court decision and a filing of a new petition in a higher court, " when reasonable, fall " within the scope of the statutory word 'pending, '" thus tolling the limitations period. Saffold, 536 U.S. at 221, 223; Chavis, 546 U.S. at 192. However, Petitioner is not entitled to any interval (a.k.a. " gap") tolling for the period between the denial of his first state habeas petition and the filing of his second because his first petition was ruled untimely. An untimely state habeas petition " must be treated . . . as though it never existed for purposes of section 2244(d)." Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011). It follows that there is no gap to toll.
18.104.22.168.3 Second State Habeas Petition
Petitioner is also not entitled to statutory tolling for his second state habeas petition. Under the " look through" doctrine, that petition, summarily denied without substantive comment or citation, is deemed to have been rejected for the reasons set forth in the superior court's order. See Bonner, 425 F.3d at 1148 n.13 (" We must determine what the superior court's order means because that was the last - and only - reasoned decision . . . .") ( citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Consequently, Petitioner's second state habeas petition is also deemed to have been rejected as untimely under California law and is not subject to statutory tolling. Id. at 1146-47, 1149 (holding that, where the superior court denied the first state habeas petition in part as untimely, the court of appeal denied the second state habeas petition " for the reasons stated in the superior court's" order, and the California Supreme Court denied the third state habeas petition without comment or citation, the petitioner was not entitled to statutory tolling during the pendency of any of the three petitions).
Based upon the foregoing, Petitioner is not entitled to any statutory tolling for the pendency of his two state habeas petitions.
2.2.2 Alternative Start of the Statute of Limitations
22.214.171.124 State-Created Impediment
In rare instances, AEDPA's one-year limitations period can run from " 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." 28 U.S.C. § 2244(d)(1)(B). Asserting that the statute of limitations was delayed by a state-created impediment requires establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
126.96.36.199 Newly Recognized Constitutional Right
AEDPA provides that, if a claim is based upon a constitutional right that is newly recognized and applied retroactively to habeas cases by the United States Supreme Court, the one-year limitations period begins to run on the date which the new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
188.8.131.52 Discovery of Factual Predicate
AEDPA also provides that, in certain cases, its one-year limitations period shall run from " 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. § 2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The Petition does not set forth any facts for an alternate start date of the limitations period under this provision.
2.2.3 Equitable Tolling
AEDPA's limitations period " is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Specifically, " a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418; Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007).
However, " [e]quitable tolling is justified in few cases" and " the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) ( quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Additionally, although " we do not require [the petitioner] to carry a burden of persuasion at this stage in order to merit further investigation into the merits of his argument for [equitable] tolling, " Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), " [w]here the record is amply developed, and where it indicates that the [alleged extraordinary circumstance did not] cause the untimely filing of his habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's allegations . . . ." Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); see also Elmore v. Brown, 378 Fed.Appx. 664, 666 (9th Cir. 2010) (" [W]here the record is sufficient to permit the district court - and us on appeal - to evaluate the strength of the petitioner's [equitable tolling] claim, the district court does not necessarily abuse its discretion if it denies the petitioner a hearing.") (cited pursuant to 9th Cir. R. 36-3).
The Petition does not set forth any facts for equitable tolling.
2.3 Procedural Default
The procedural default doctrine bars review of a petitioner's federal habeas claim when the claim was rejected in state court based on an adequate and independent state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, such a procedural bar must have arisen from explicit and independent state law. Id. at 735; Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). If the basis of the decision is interwoven with federal law, or if a threshold federal analysis is required, there is no independent basis for the bar, and the petitioner may seek relief in federal court. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). For the procedural bar to be adequate, it must be clear, consistently applied, and well established at the time of the alleged default. Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005).
The claims Petitioner raises in the pending Petition were all raised in the state courts on collateral review, and were therefore denied as untimely by the superior court. (Pet. at 5-7; App. C.) Further, the California Court of Appeal's subsequent denial of those claims without substantive comment is presumed to have relied on the superior court's procedural bar. Ylst, 501 U.S. at 803.
The United States Supreme Court has conclusively held that California's timeliness rule is both independent and adequate. See Walker, 131 S.Ct. at 1124-31 (2011). As a result, the face of the Petition and the attached exhibits establish Petitioner's claims are procedurally defaulted, and " [a]ny arguments that [Petitioner] did, in fact, exhaust his administrative remedies, or that California did not properly apply its own procedures, are not appropriate for this court's consideration." Id. ( citing Poland v. Stewart, 169 F.3d 573, 584 (9th Cir.1999)).
Moreover, the procedural default doctrine still applies even though the superior court alternatively addressed the merits in rejecting some of Petitioner's claims. See Harris, 489 U.S. at 264 n.10; Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992).
A federal habeas court may, however, consider a procedurally defaulted claim if " the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." See Bennett, 322 F.3d at 580. (Internal quotations and citation omitted). The miscarriage of justice exception is limited to petitioners who can show that " a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (citation omitted). In this case, neither the face of the Petition nor the attached exhibits make the required showing that there is cause and actual prejudice, or that the failure to consider Petitioner's claims will result in a fundamental miscarriage of justice.
The pending Petition, in addition to being time-barred, contains claims that are procedurally barred.
Based on the foregoing, the Court finds this action is untimely, and the pending claims are procedurally defaulted. Accordingly, Petitioner shall have until January 6, 2014, to file a written response and show cause why his Petition should not be dismissed with prejudice. In responding to this Order, Petitioner must show by declaration and any properly authenticated exhibits what, if any, factual or legal basis he has for claiming that the Court's foregoing analysis is incorrect.
Petitioner is warned that if a timely response to this Order is not made, Petitioner will waive his right to respond and the Court will, without further notice, issue an order dismissing the Petition, with prejudice.
Further, if Petitioner determines the Court's analysis is correct and the Petition is time-barred, its claims are procedurally barred, or both, he should consider filing a Request for Voluntary Dismissal of this action pursuant to Fed.R.Civ.P. 41(a)(1) in lieu of a response.
IT IS SO ORDERED.