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Delgado v. Kernan

United States District Court, E.D. California

June 24, 2019

SCOTT KERNAN, Respondent.



         Petitioner is a state prisoner proceeding pro se in this federal habeas corpus action filed pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss petitioner's federal habeas corpus application on the basis that it is barred by the statute of limitations. ECF No. 8. The motion has been fully briefed. See ECF Nos. 11-13. For the reasons discussed below, the court recommends that the motion to dismiss be granted and petitioner's application for federal habeas corpus relief be dismissed with prejudice as time barred.

         I. Factual and Procedural History

         The instant federal habeas application challenges petitioner's conviction for three counts of first-degree murder with special circumstances following a jury trial in the Sacramento County Superior Court. ECF No. 1 at 1. On June 22, 2012, petitioner was sentenced to three consecutive terms of life in prison without parole. Id.; see also ECF No. 12-1 at 2 (Abstract of Judgment).

         Petitioner filed a direct appeal in the California Court of Appeal which affirmed his convictions on March 17, 2016. ECF No. 1 at 95; ECF No. 12-2 at 2-35 (Direct Appeal Opinion). The California Supreme Court denied his petition for review on June 8, 2016. ECF No. 1 at 17; ECF No. 12-4 at 2 (California Supreme Court Electronic Docket).

         Petitioner's first state habeas corpus petition was filed in the Sacramento County Superior Court on September 5, 2017.[1] ECF No. 12-5 at 68. It was denied on October 24, 2017. ECF No. 12-6 at 2-4. Next, petitioner filed a state habeas petition in the California Court of Appeal on December 21, 2017. ECF No. 12-7 at 71. It was denied on February 1, 2018. ECF No. 1 at 92, ECF No. 12-8 at 2. Petitioner's third and final state habeas petition was filed in the California Supreme Court on March 2, 2018. ECF No. 1 at 28; ECF No. 12-9 at 75. It was denied on May 9, 2018. ECF No. 1 at 18, ECF No. 12-10 at 2.

         On June 6, 2018 petitioner filed the pending federal habeas corpus application raising four claims for relief. ECF No. 1 at 15. First, petitioner challenges his first-degree murder convictions on the ground that he lacked the requisite mental state since he was not the triggerman. ECF No. 1 at 5. Next, petitioner contends that his Sixth Amendment right to confrontation and his Fourteenth Amendment right to due process were violated based on the trial court's admission of expert gang testimony. ECF No. 1 at 7. In his third claim for relief petitioner alleges that the state courts applied the wrong standard in denying his state habeas corpus petitions. ECF No. 1 at 8. Finally, petitioner asserts that his Fifth Amendment right against self-incrimination was violated when the trial court admitted his statements to police even though he did not knowingly and intelligently waive his Miranda rights. ECF No. 1 at 10. As will become relevant to petitioner's request for equitable tolling of the statute of limitations governing federal habeas relief, this last argument is based on petitioner's lack of English as well as Spanish language skills since his native language is Nahuatl. Id.

         II. Motion to Dismiss

         In the motion to dismiss, respondent argues that petitioner's federal habeas application was filed “nearly one month after” the one-year statute of limitations expired. ECF No. 9 at 2. Petitioner's conviction became final on September 6, 2016 when the 90-day period to file a petition for certiorari in the United States Supreme Court expired. ECF No. 9 at 2-3. The federal statute of limitations started the next day and expired one year later on September 7, 2016 without any statutory or equitable tolling. Id. at 3. According to respondent, 363 days of the one-year limitations period had elapsed before petitioner filed his first state habeas petition on September 5, 2017. Id. at 3-4. Even granting petitioner statutory tolling for the entire time that all three of his state habeas petitions were pending, the instant federal petition is untimely because petitioner had until May 11, 2018 to file it. ECF No. 9 at 4. Respondent therefore contends that petitioner's federal habeas application that was filed on June 6, 2018, is almost one month late. Id. As a result, respondent requests that the petition be dismissed with prejudice. Id. at 5.

         In his opposition, petitioner requests equitable tolling on the basis of his “severe language problem/barrier going back to his arrest and interrogation by police….” ECF No. 19 at 4. Petitioner's native language is Nahuatl, an “Aztec Indian dialec[t].” Id. According to petitioner, this language barrier constitutes an extraordinary circumstance beyond his control that warrants equitably tolling the statute of limitations. Id. In support of this contention, petitioner submitted an affidavit from his jailhouse lawyer, Danny Montana Guerra, who has known petitioner “since approximately December 2016.” ECF No. 19 at 8; see also ECF No. 1 at 32. Mr. Guerra declared that “I quickly found that Mr. Delgado can read, [and] speak very little English, and his comprehension level in English was/is severely challenged….” Id. at 1.

         Petitioner also requests equitable tolling of the statute of limitations based on deficiencies in the law library computers at Ironwood State Prison where petitioner was incarcerated between September 2016 and July 2017. ECF No. 19 at 3. Specifically, petitioner contends that the cases supporting the arguments in support of his state habeas petitions were not available until July 2017 because the law library computer database was not updated in December 2016.[2] Id.

         Petitioner argues that he was denied access to these necessary legal research materials for a period of 11 months and should be granted equitable tolling on this basis. Id. While acknowledging that Daily Appellate Journal Reports (“DAR's”) are an alternate legal resource at the prison law library, petitioner submits an affidavit from his jailhouse lawyer indicating that these were not delivered during the same 11-month time frame. ECF No. 19 at 9 (Declaration of Danny Montana Guerra). According to petitioner, the denial of access to these legal reference materials by the CDCR for a period of 11 months constitutes an extraordinary circumstance beyond petitioner's control. ECF No. 19 at 5. But for the lack of access to these materials, petitioner and his jailhouse lawyer would have been able to file his state habeas petitions “in a more speedier/diligent manner….” Id. at 6.

         By way of reply, respondent points out that petitioner's language barrier was not an extraordinary circumstance that justifies equitable tolling. ECF No. 22 at 2-8. Respondent also contends that petitioner was not diligent in seeking assistance in his native language by showing any effort he made to obtain “legal materials in Nahuatl or to procure translation help from other inmates, library personnel, or other sources.” Id. at 3-4 (citing Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006). Moreover, petitioner's assertions that he does not understand Spanish are belied by the trial court record denying his suppression motion. ECF No. 22 at 4. At the time of his arrest for the instant case, petitioner had lived in the United States for 5 years and spoke Spanish with his wife, his girlfriend Alma Rosa, his neighbors, his fellow gang members as well as Placerville and Sacramento law enforcement officers. ECF No. 23-2 at 9-11. Petitioner never told Deputy Pena, the translating officer during his police interview, that he did not understand Spanish or that he needed a Nahuatl interpreter. ECF No. 22 at 5 (citing ECF No. 23-2 at 22-23). After reviewing the audio and video recording of his interview with police, the trial court specifically found that petitioner “[d]uring the giving of the Miranda[3] waivers and the entirety of more than an hour interview, … never appeared confused or not to understand the question posed, or Deputy Pena's Spanish. Mr. Delgado responded in Spanish without hesitation, and appeared to speak Spanish with ease and fluency. It was clear that at certain points Mr. Delgado understood the English spoken by Deputy Pena and Detective Turnbull…. Several times he spoke English to clarify a point.” ECF No. 23-3 at 3. Even on appeal, the California Court of Appeal concluded that there was substantial evidence demonstrating petitioner's command of the Spanish language to “refute his claims of [a] defective waiver of his Miranda rights.” ECF No. 12-2 at 4.

         With respect to petitioner's request for equitable tolling based on inadequacies in the prison law library, respondent points out that “[p]etitioner's ability to raise his claims were not dependent on cases published between September 2016, and July 2017.” ECF No. 22 at 9. Moreover, three out of the four cases that were purportedly unavailable during this time frame involve issues of state law and not federal constitutional claims cognizable on habeas. Id. Thus, these cases do not provide any legal basis upon which petitioner could have requested federal habeas corpus relief. Id. Accordingly, respondent requests that the court deny petitioner's request for equitable tolling and dismiss his federal habeas petition with prejudice as untimely filed.

         III. ...

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