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Hinds v. Gastelo

United States District Court, S.D. California

November 22, 2017

JOHN WARREN HINDS, Petitioner,
v.
JOSIE GASTELO, Warden, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER DENYING WITHOUT PREJUDICE MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 7]

          Jill L. Burkhardt, United States Magistrate Judge

         I. INTRODUCTION

         Before the Court is the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 of Petitioner John Hinds. (ECF No. 1.) Also before the Court is Respondent's motion to dismiss petition for writ of habeas corpus, Petitioner's opposition thereto, and Respondent's reply. (ECF Nos. 7; 10; 13.)

         This Report and Recommendation is submitted to United States District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. For the reasons discussed below, the Court recommends Respondent's motion (ECF No. 7) be DENIED WITHOUT PREJUDICE.

         II. BACKGROUND

         Petitioner challenges his convictions and sentences related to two separate incidents. First, on June 26, 2012, Petitioner Hinds grabbed the glasses Howard Woods was wearing and ran down the streets of downtown San Diego. (ECF No. 1 at 15.)[1] Woods ran after Petitioner, and moments later, Petitioner struck Woods multiple times with his fists. (Id. at 15-16.) Petitioner then left the area, and returned shortly thereafter. (Id. at 16.) After words were exchanged, Petitioner struck Woods several more times. (Id.) Woods suffered bruising near his eye and a laceration to the back of his head among other injuries. (Id.)

         Second, on August 3, 2012, Petitioner was in custody at the central jail in downtown San Diego. (Id. at 19.) Having escorted Petitioner to his housing unit, Deputy Marie Chateigne began to remove Petitioner's hand restraints through the food flap located on the front of the cell door. (Id.) However, as she attempted to remove Petitioner's restraints, Petitioner pulled Deputy Chateigne's arm through the food flap and spat on her through the door. (Id.) Deputy Chateigne suffered bruising to her left arm as a result. (Id.)

         Petitioner was tried criminally for both incidents. A jury of the San Diego County Superior Court found Petitioner guilty of the four counts that arose from the June 26, 2018 incident - count one for robbery in violation of California Penal Code section 211, count two for assault by means of force likely to produce great bodily injury in violation of California Penal Code section 245, subdivision (a)(4), count three for grand theft in violation of California Penal Code section 487, and count four for battery in violation of California Penal Code section 242. (ECF No. 8-3 at 8-9.) In a subsequent bifurcated bench trial that arose from the August 3, 2012 incident, the trial court found Petitioner guilty of the remaining two counts - count five for battery on a peace officer with injury in violation of California Penal Code section 243, and count six for resisting an executive officer in violation of California Penal Code section 69. (ECF No. 8-3 at 9.) The trial court also found Petitioner had served two separate prison terms pursuant to California Penal Code section 667.5, subdivision (b), and was previously convicted of a serious felony offense under California Penal Code section 667, subdivision (a). (Id.) Petitioner was sentenced to an aggregate of sixteen years and four months in state prison. (ECF No. 8-2 at 1-4.) Petitioner appealed his convictions and sentences. (ECF No. 8-3.)

         On April 16, 2014, the California Court of Appeal issued a written opinion on Petitioner's appeal. The Court of Appeal reversed the conviction for grand theft in count 3, struck the one-year sentence enhancement imposed based on a prior conviction, and affirmed the judgment in all other respects. (ECF No. 8-6 at 18.) Petitioner sought further review by the California Supreme Court. (ECF No. 8-7.) On June 25, 2014, the Supreme Court denied the request for review without comment. (ECF No. 8-8.)

         Next, Petitioner filed three state post-conviction habeas petitions. First, Petitioner filed a petition for writ of habeas corpus with the San Diego County Superior Court dated May 15, 2015, which was received on June 2, 2015. (ECF No. 8-9 at 1, 8.) Petitioner claimed “[i]neffective assistance of trial counsel in violation of Petitioner's 6th Amendment right” for failing to present Petitioner's extensive, documented mental health history as part of the defense strategy. (Id. at 3, 13.) On July 6, 2015, the Superior Court denied the petition for failing to set forth a prima facie case for relief, holding In the Matter of the Application of: John Warren Hinds, No. HC22055 (Super. Ct. of Cal., Cty. of San Diego July 06, 2015):

Here, Petitioner has not met his burden to show he was prejudiced by his purported ineffective counsel. While Petitioner has submitted a number of exhibits in support of his petition, he has not explained how counsel's alleged failure to raise the issue of Petitioner's mental health fell below the standard of care, or that even if counsel had raised it, the outcome would have been different.

(ECF No. 8-10 at 3.)

         Second, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal dated October 19, 2015, which was received on October 26, 2015. (ECF No. 8-11 at 1, 150.) Again, Petitioner argued ineffective assistance of trial counsel for failing to present his mental history in court. (ECF No. 8-11 at 3.) On October 28, 2015, the California Court of Appeal denied the petition, holding In re John Warren Hinds, No. HC22055 (Cal.Ct.App. Oct. 28, 2015):

Hinds is not entitled to habeas corpus relief. His petition, filed two-and-a-half years after he was sentenced without any explanation for the delay, is barred as untimely. . . . Even if the petition were not procedurally barred, it would fail on the merits. . . . The record thus shows counsel presented evidence and argument concerning Hinds's mental illness to both the jury and the court, and it is not reasonably probable additional evidence on that issue would have resulted in a better outcome for Hinds.

(ECF No. 8-12 at 2.)

         Petitioner's third and last state petition for writ of habeas corpus was constructively filed with the California Supreme Court on February 3, 2016.[2] (ECF No. 8-13 at 21.) In addition to the same grounds for relief that he had raised before the California Court of Appeal, Petitioner claimed ineffective assistance of counsel for failure to present an expert witness to testify about the mental condition of Petitioner at the time of the offense. (ECF No. 8-13 at 2, 12.) The California Supreme Court denied his petition on April 20, 2016, citing People v. Duvall, 9 Cal.4th 464, 474 (1995), but otherwise without comment. (ECF No. 8-14.)

         On February 20, 2017, Petitioner filed the petition for writ of habeas corpus that is currently pending before this Court (the “Petition”). (ECF No. 1.) Petitioner contends trial counsel failed to present an adequate defense with respect to his mental state in violation of his Sixth Amendment and Fourteenth Amendment rights. (ECF No. 1 at 6.) On June 21, 2017, Respondent filed a motion to dismiss the Petition with prejudice as being barred by the statute of limitations. (ECF No. 7.) On July 31, 2017, Petitioner filed an opposition to the motion to dismiss arguing he is entitled to equitable tolling, and the Petition is therefore not time barred. (ECF No. 10.) On October 25, 2017, Respondent filed a reply arguing Petitioner is not entitled to equitable tolling. (ECF No. 13.)

         III. SCOPE OF REVIEW

         Title 28 of the United States Code, section 2254, provides the following scope of review for federal habeas corpus claims:

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

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