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Bastidas v. Dexter

United States District Court, C.D. California

August 30, 2019

PABLO BASTIDAS, Petitioner,
v.
DEBRA DEXTER, Respondent.

          ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE DENYING GROUNDS ONE AND THREE (DOCKET NO. 45) AND DENYING MOTION TO STAY (DOCKET NO. 16), AND ALTERNATIVELY DENYING NEW / OTHER GROUNDS FOR RELIEF

          HONORABLE DAVID O. CARTER, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) and all of the records herein, including the October 26, 2011 Report and Recommendation of United States Magistrate Judge which addresses Grounds One and Three of the Petition (Docket No. 45) (“Merits R&R”), the January 11, 2010 Order Denying Petitioner's Motion to Stay (Docket No. 16) (alternatively, “Stay R&R”) which the Court has construed to be a report and recommendation of United States Magistrate Judge in accordance with Bastidas v. Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015), and the parties' objections thereto (Docket Nos. 47, 62, 64, 68, 71). The Court has made a de novo determination of those portions of the Merits R&R and the Stay R&R to which objection is made.

         As detailed below, the Court concurs with and accepts the Magistrate Judge's findings and conclusions in the Merits R&R and the Stay R&R, denies the Motion to Stay, and overrules the parties' objections to the extent they are inconsistent with this Order. Further, and alternative to its concurrence with and acceptance of the Stay R&R, and assuming the case would have progressed differently had the Motion to Stay been granted and had petitioner's unadjudicated claims been considered on the merits, the Court denies such claims on the merits. Finally, the Court denies the Petition and dismisses this action with prejudice.

         II. BACKGROUND

         On December 28, 2007, petitioner Pablo Bastidas, a state prisoner who then was proceeding with the assistance of counsel, filed the Petition and a separate memorandum (“Petition Memo”). Petitioner challenged his 2002 conviction and sentence in Los Angeles County Superior Court No. BA240229 following a jury trial. The Petition originally asserted four claims for relief: (1) petitioner was denied his Sixth Amendment right to counsel because his trial attorney failed to investigate and present an alibi defense (Ground One); (2) petitioner was sentenced by the court to an upper term without aggravating factors being considered by the jury in violation of Cunningham v. California, 549 U.S. 270 (2007) (Ground Two); (3) the trial court failed to instruct the jury that a witness' prior conviction could be considered in determining the witness' credibility (Ground Three); and (4) there was insufficient evidence that petitioner used or discharged a firearm (Ground Four). (Petition at 5-6). Petitioner indicated that Grounds Two and Four had not been raised with the California Supreme Court when the Petition was filed. (Petition at 5-6).

         On January 4, 2008, the Magistrate Judge ordered the parties to brief whether the Petition was barred by the statute of limitations. (Docket No. 4). The parties briefed the timeliness issue and lodged multiple documents in support thereof. (Docket Nos. 6-10).

         On October 2, 2008, petitioner's counsel moved to withdraw as counsel of record. (Docket No. 11). On November 12, 2008, the Magistrate Judge granted counsel's motion to withdraw. (Docket No. 14).

         On July 29, 2009, petitioner filed the Motion to Stay (Docket No. 15), seeking to stay and abey this action pending his exhaustion of an additional claim in the California courts, i.e., a claim that his constitutional rights were violated when the trial court erroneously “placed unadjudicated weapon enhancements consecutive to petitioner[']s accusatory charge after conviction of only the charged offense [California] Penal Code [section] 667(a)(1) enhancement” (the “new claim”). See Motion to Stay at 1. On January 11, 2010, the Magistrate Judge issued the Order Denying Petitioner's Motion to Stay (Docket No. 16) (since construed to be the Stay R&R), finding that a stay was not warranted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), cert. denied, 538 U.S. 1042 (2003), because the new claim was not timely, or under Rhines v. Weber, 544 U.S. 269 (2005), because petitioner had not shown “good cause” for his failure to exhaust his new claim first in state court and again, because it was untimely.

         On January 11, 2010, the Magistrate Judge also issued an order directing further briefing, requiring respondent to file an answer addressing the merits of the Petition. (Docket No. 17). On March 10, 2010, respondent filed an application for leave to file a motion to dismiss and a motion to dismiss the Petition, arguing that Grounds Two and Four were unexhausted, and lodged multiple documents. (Docket Nos. 20, 22-23). On March 19, 2010, petitioner filed a “Notice of Withdrawal of Second and Fourth Claim[s] from Petition.” (Docket No. 24). In light of petitioner's notice of withdrawal, on March 30, 2010, the Magistrate Judge denied respondent's application for leave to file a motion to dismiss and struck the motion to dismiss. (Docket No. 25).

         On May 13, 2010, respondent filed an answer addressing the merits of the two remaining claims in the Petition (Grounds One and Three) and arguing that the Petition was time-barred. (Docket No. 32). Respondent lodged multiple documents in support of the answer including the Clerk's Transcript (“CT”) and the Reporter's Transcript (“RT”). (Docket Nos. 33, 39).[1] On July 21, 2010, petitioner filed a Traverse.

         On October 26, 2011, the Magistrate Judge issued the Merits R&R recommending that the then remaining grounds in the Petition - Grounds One and Three - be denied on the merits and that this action be dismissed with prejudice. (Docket No. 45). Because petitioner's claims failed on the merits, the Magistrate Judge declined to address whether the Petition was time-barred. See Merits R&R at 7 n.6. On November 7, 2011, petitioner filed objections to the Merits R&R. (Docket No. 47). On November 30, 2011, the previously assigned District Judge issued an order accepting the Merits R&R, overruling the objections thereto, denying the Petition, and dismissing the action with prejudice. (Docket No. 48). Judgment was thereafter entered accordingly. (Docket No. 49).

         Petitioner appealed to the Ninth Circuit. (Docket No. 51). On July 1, 2015, the Ninth Circuit vacated the judgment and remanded the matter for further proceedings, finding that the Magistrate Judge lacked authority to issue the Order Denying Petitioner's Motion to Stay. See Bastidas v. Chappell, 791 F.3d at 1164. The Ninth Circuit instructed:

The court should determine de novo whether a stay was warranted with regard to the new claim at the time Bastidas made his motion, and may consider the magistrate judge's order as a report and recommendation, along with any objections from the parties. If a stay was warranted, the court should decide “[t]he pertinent question”: “Would the case have progressed differently [regarding that claim] had a stay been granted, and, if so, how?”

Id. (quoting Mitchell v. Valenzuela, 791 F.3d 1166, 1173-74 (9th Cir. 2015)). On July 24, 2015, the Ninth Circuit issued the mandate. (Docket No. 58). On July 30, 2015, petitioner's appointed counsel filed a notice of appearance for petitioner. (Docket No. 59).

         On August 6, 2015, the previously assigned District Judge referred the matter to the Magistrate Judge. (Docket No. 60). On August 14, 2015, the Magistrate Judge issued an order deeming the Order Denying Petitioner's Motion to Stay a report and recommendation and affording the parties an opportunity to file objections. (Docket No. 61). On September 3, 2015, respondent filed objections to the Order Denying Petitioner's Motion to Stay/the Stay R&R (“Respondent's Objections”) and lodged multiple documents. (Docket Nos. 62-63). On September 3, 2015, petitioner filed objections with attachments (“Petitioner's Objections”). (Docket No. 64). On September 17, 2015, petitioner filed a response to Respondent's Objections with attachments (“Petitioner's Response”). (Docket No. 68). On November 16, 2015, respondent filed a reply to Petitioner's Objections (“Respondent's Reply”). (Docket No. 71). On April 18, 2017, petitioner filed a notice of supplemental authority. (Docket No. 72). The matter was thereafter reassigned to this Court. (Docket No. 73).

         III. STATE AND RELATED PROCEDURAL HISTORY

         On August 23, 2002, after a joint trial with co-defendant Wilmer Alberto, a Los Angeles County Superior Court jury returned verdicts finding petitioner guilty of four counts of robbery, three counts of possession of a firearm by a felon, and one count of assault with a firearm. (CT 250-54, 256-58; RT 2407-13). The jury also found true multiple firearm enhancement allegations. (CT 250, 252-53, 256- 57; RT 2407-13). The jury acquitted petitioner of attempted murder. (CT 255; RT 2413-14). The trial court sentenced petitioner to a total of 55 years in state prison. (CT 277-79; RT 2708).

         Petitioner's retained counsel, William Bartz, filed a direct appeal in California Court of Appeal No. B163483, raising petitioner's claims presented as Grounds Three and Four herein. (CT 276; Lodged Docs. 11, 13). On December 17, 2003, counsel also filed a habeas petition (“First State Petition”) in California Court of Appeal No. B171850, raising petitioner's claim presented as Ground One herein. (Lodged Doc. 14). On March 22, 2004, the Court of Appeal affirmed the judgment on direct appeal and denied the First State Petition in a single reasoned decision. (Lodged Doc. 3).

         On May 3, 2004, petitioner, through counsel, filed a petition for review in California Supreme Court No. S124483, raising only Ground Three. (Lodged Doc. 4). On June 9, 2004, the California Supreme Court denied review. (Lodged Doc. 5).

         On December 4, 2006, petitioner, through counsel, filed a state habeas petition (“Second State Petition”) in California Supreme Court No. S148594, raising Ground One. (Lodged Doc. 6). On June 13, 2007, the California Supreme Court denied the Second State Petition without comment. (Lodged Doc. 7). On June 18, 2007, Bartz stopped representing petitioner. (Docket No. 8 at Ex. H (Bartz letter informing petitioner that petitioner had “one year from the date of the denial (June 13, 2007) to file in the federal district court”)).

         On July 26, 2009, petitioner, proceeding pro se, constructively filed a state habeas petition (“Third State Petition”) in the Los Angeles County Superior Court, raising the new claim he sought to raise in these proceedings, i.e., that the trial court placed “unadjudicated” weapons enhancements after petitioner's conviction. (Lodged Doc. 16). On August 5, 2009, the Superior Court denied the Third State Petition on procedural grounds and on the merits. (Lodged Doc. 17). As to the merits, the Superior Court observed: “A review of the court file indicates that the enhancements were alleged in the Information. A review of the verdict forms indicates that the jury in fact deliberated and found the weapon enhancements true.” (Lodged Doc. 17).

         Meanwhile, as noted above, petitioner filed the instant Petition with this Court on December 28, 2007, and the Motion to Stay on July 29, 2009.

         On or about August 24, 2009, petitioner filed a state habeas petition (“Fourth State Petition”) in California Court of Appeal No. B218378, raising his new claim. (Lodged Doc. 18). On October 16, 2009, the Court of Appeal denied the Fourth State Petition on the merits, stating, “Our file reflects that petitioner was charged with the firearm enhancements, and the jury found the firearm enhancement allegations to be true.” (Lodged Doc. 19).

         On November 24, 2009, petitioner constructively filed a state habeas petition (“Fifth State Petition”) in California Supreme Court No. S178439, raising his new claim. (Lodged Doc. 8). On May 20, 2010, the California Supreme Court summarily denied the Fifth State Petition with citations to In re Robbins, 18 Cal.4th 770, 780 (1998), In re Clark, 5 Cal.4th 750 (1993), and In re Dixon, 41 Cal. 2d 756 (1953). (Lodged Doc. 25).

         On December 1, 2014, petitioner, through counsel, filed a state habeas petition (“Sixth State Petition”) in California Supreme Court No. S222837, raising claims asserted herein as Grounds Two and Four. (Lodged Docs. 26-27). On February 11, 2015, the California Supreme Court denied the Sixth State Petition with citations to In re Robbins, 18 Cal.4th at 780, and In re Clark, 5 Cal.4th at 767-69. (Lodged Doc. 28).

         As noted above, the Ninth Circuit issued its decision on appeal in Bastidas v. Chappell on July 1, 2015, and its mandate following petitioner's appeal on July 24, 2015. (Docket No. 58).

         IV. DISCUSSION

         The Court has conducted a de novo review of the portions of the Merits R&R and the Stay R&R to which the parties have objected, concurs with and accepts the Magistrate Judge's findings and conclusions therein, and overrules the parties' objections to the extent they are inconsistent with this Order. The Court does not further address the Merits R&R and objections thereto herein, but does specifically address the Stay R&R and objections thereto below and independently denies the Motion to Stay. Based on the Court's de novo review of the Kelly and Rhines analysis in the Stay R&R, the Court concludes that a recommendation to deny petitioner's Motion to Stay was warranted at the time petitioner made the Motion to Stay. Assuming, arguendo, that the Petition itself was timely, petitioner has not demonstrated that his new claim - the exhaustion of which was the predicate for the Motion to Stay - was timely for a Kelly stay, or that there was good cause for his failure to exhaust the new claim and the new claim was potentially meritorious for a Rhines stay.[2] Further, and alternative to its concurrence with and acceptance of the Stay R&R and denial of the Motion to Stay, and assuming the case would have progressed differently had the Motion to Stay been granted and had petitioner's unadjudicated claims been considered on the merits, the Court denies such claims for the reasons explained below.

         A. Petitioner's New Claim Was (and Is) Time-Barred

         As the Magistrate Judge explained, for petitioner to be entitled to a Kelly stay to exhaust his unexhausted claim, his new claim must not have been time-barred. See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (“A petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition once he has exhausted them only if those claims are determined to be timely.”), cert. denied, 558 U.S. 887 (2009). Petitioner admits that he sought to add the new claim after the statute of limitations had expired. See Petitioner's Objections at 4. Petitioner argues, however, that the new claim related back to Ground Four of the Petition. (Id. at 5). Respondent, on the other hand, argues that the Petition itself is untimely. (Respondent's Objections at 2).

         The statute of limitations in petitioner's case began to run on September 8, 2004 - the day after petitioner's conviction became final. See Stay R&R at 2-3 (establishing timeline). Since petitioner had no properly-filed state habeas petitions pending from September 8, 2004 through September 7, 2005, statutory tolling would not render the Petition timely filed. See id. at 3-4 (discussing same).

         Petitioner argues that he is entitled to equitable tolling for the time that he was represented by Bartz because Bartz allegedly “defrauded [], misled [], and abandoned him.” (Petitioner's Response at 1-10; Docket No. 8 & exhibits thereto). As noted above, when Bartz stopped representing petitioner on June 18, 2007, Bartz informed petitioner that petitioner had until June 13, 2008 to file a federal habeas petition. See Docket No. 8 at Ex. H.

         Given the Court's alternative disposition herein, the Court has assumed without deciding that equitable tolling would apply during the time that Bartz was representing petitioner (i.e., from prior to the limitations period until the California Supreme Court's June 13, 2007 denial of the Second State Petition (Lodged Doc. 7)), to render the Petition timely filed. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (court may properly deny petition on the merits rather than reaching complex questions lurking in time bar of federal habeas statute), cert. denied, 535 U.S. 950 (2002). Accordingly, in that event, the statute of limitations would have commenced to run on June 14, 2007 and would have expired no later than June 13, 2008. Petitioner did not file his new claim with the state ...


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