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Tapia v. Hatton

United States District Court, S.D. California

July 21, 2017

LUIS TAPIA, Petitioner,
v.
S. HATTON, Warden, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [ECF, 10]

          Hon. Barbara L. Major United States Magistrate Judqe

         This Report and Recommendation is submitted to United States District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On October 16, 2016, Petitioner Luis Tapia, a state prisoner proceeding pro se commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. ECF No. 1 (“Pet.”). Petitioner challenges his conviction for murder in the second degree with the use of a firearm. Id. at 1-2.

         On October 26, 2016, the Court denied Petitioner's motion to proceed in forma pauperis [see ECF No. 3], dismissed the Petition without prejudice, and informed Petitioner that he must provide the Court with the $5 filing fee or adequate proof that he could not pay the $5.00 filing fee in order to have the case reopened. ECF No. 4. On November 28, 2016, Petitioner paid the $5 filing fee. ECF No. 5. On December 5, 2016, the Court reopened the case and issued a briefing schedule requiring Respondent to file a motion to dismiss by February 10, 2017, and Petitioner to file an opposition by March 12, 2017. ECF No. 8. Currently before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus because it is a second and successive Petition and because the Petition is untimely. ECF. No. 10 (“MTD”). On March 8, 2017, Petitioner constructively filed an opposition. ECF 12 (“Oppo.”). For the reasons set forth below, the Court RECOMMENDS that Respondent's motion to dismiss be GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On June 24, 1982, an information was filed charging Petitioner with one count of murder and with having personally used a firearm. Lodgment 4. The jury found Petitioner guilty and convicted him of second degree murder. Id.; see also Lodgment 1 at 4. The judgment was reversed on appeal for failing to instruct the jury on voluntary manslaughter under a heat of passion theory. Id. Petitioner was retried and on November 29, 1989, the jury again found him guilty of second degree murder and that he did personally use a firearm. Id.; see also Lodgment 2 at 52. On December 22, 1989, Petitioner was sentenced to a total term of seventeen years to life. Lodgment 4 at 1; see also Lodgment 3 at 2.

         On January 30, 1990, Petitioner filed a timely notice of appeal to the California Court of Appeal alleging that the court erred by “(1) failing to instruct the jury on the "law of the case" set forth in our prior opinion, (2) refusing to grant a mistrial based on destruction of evidence, and allowing testimony relating to tests performed on the destroyed evidence, (3) admitting a photograph of the victim taken at the scene, (4) admitting the testimony of a witness that Tapia had threatened him at a prior hearing, and (5) denying Tapia's motion for new trial on the grounds the verdict was against the weight of the evidence.” Lodgment 1 at 4. On April 12, 1991, the Court of Appeal, Fourth Appellate District, Division One, affirmed the judgment. Id. There is no indication in the record that Petitioner filed a petition for review in the California Supreme Court. See Lodgments; see also MTD at 7.

         On July 9, 2009, the Board of Parole Hearings (“BPH”) held a parole consideration hearing and concluded that Petitioner was not suitable for parole. Lodgment 6 at 1. The denial was for five years. Id. Petitioner then filed petitions for writ of habeas corpus challenging the BPH's decision which were denied by the superior court on May 26, 2010 and by the court of appeal on October 15, 2010. The BPH held another parole consideration hearing on July 1, 2014 and again found that Petitioner was not suitable for parole. Id. The denial was for three years. Id. On August 14, 2015, Petitioner filed a habeas petition in the California Superior Court, County of San Diego, challenging the BPH's July 1, 2014 decision which was denied on September 24, 2015. Id. at 2.

         On May 21, 2016, Petitioner filed another habeas petition in the California Superior Court, County of San Diego, contending that he was deprived of due process because he was convicted under an unconstitutionally vague statute and because he was deprived of the legislative intent of Penal Code section 1168(b) which rendered Penal Code Sections 3041(a) and (b) unconstitutionally vague and violated ex post facto laws. Lodgment 5 at 3-4. On June 17, 2016, the California Superior Court denied Petitioner's habeas petition as a successive petition and because Petitioner failed to state a prima facie claim for habeas relief. Lodgment 6.

         On July 8, 2016, Petitioner filed another petition for writ of habeas corpus in the California Court of Appeal which raised the same claims as the May 21, 2016 petition. Lodgment 7. On July 12, 2016, the California Court of Appeal denied the petition on the merits finding that Petitioner provided “no documentary evidence that he was convicted under the felony-murder theory of second degree murder” and that without any evidence that Petitioner “was convicted under the theory he now claims is unconstitutional, he fails to state a prima facie case for relief.” Lodgment 8. The Court also found that Petitioner had previously raised his ex post facto claims and that “absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected.” Id.

         On August 1, 2016, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court seeking the same relief. Lodgment 9. The petition was summarily denied on October 12, 2016. Lodgment 10.

         Petitioner constructively filed the instant petition on October 16, 2016. Pet. Petitioner argues that (1) the structure of California's second degree murder statute is unconstitutionally vague under Johnson v. United States, 135 S.Ct. 2551 (2015) and that (2) the BPH and California courts have arbitrarily applied Penal Code Section 3041(b) rendering it void for vagueness under Johnson. Pet. at 6-7.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claim:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (2006 & Supp. 2016).

         DISCUSSION

         Respondent contends that the Petition should be dismissed as untimely and as a second and successive petition under 28 U.S.C. §§2244(b) and (d). MTD at 9-16.

         I. The AEDPA Statute of Limitations

         The AEDPA imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d) (2006 & Supp. 2016). Section 2244(d)'s one-year limitations period applies to all habeas petitions filed by persons “in custody pursuant to the judgment of a State ...


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