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Panighetti v. J. Gastelo

United States District Court, E.D. California

September 24, 2019

WESLEY PANIGHETTI, Petitioner,
v.
J. GASTELO, Respondent.

          ORDER AND FINDINGS & RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent’s motion to dismiss the petition. ECF No. 17.

         I. Factual and Procedural Background

         On February 26, 2015, a jury convicted petitioner of assault with force likely to produce great bodily injury (Count 1) and assault with a deadly weapon (Count 2) in Sacramento County Superior Court case number 14F07183. ECF No. 11 at 5; ECF No. 12-1 (Lod. Doc. 1) at 10; ECF 18-2 (Lod. Doc. 2) at 1. An enhancement allegation that petitioner personally used a deadly or dangerous weapon was found true, as was an allegation that he had a prior conviction for a serious felony. Lod. Doc. 1 at 1; Lod. Doc. 2 at 5. The sentence on Count 2 was stayed and petitioner was sentenced to an aggregate term of fourteen years for Count 1, the weapon enhancement, and the prior serious felony. Lod. Doc. 1 at 1; Lod. Doc. 2 at 5.

         A. Direct Review

         Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District, and the judgment was affirmed on April 1, 2016. Lod. Doc. 2. He then filed a pro se petition for review in the California Supreme Court (ECF No. 18-3 (Lod. Doc. 3)), which was denied on June 8, 2016 (ECF No. 18-4 (Lod. Doc. 4)).

         B. State Collateral Review

         Petitioner filed a pro se petition for writ of habeas corpus in the California Court of Appeal for the Third District on November 26, 2015.[1] ECF No. 18-5 (Lod. Doc. 5). It was denied on December 23, 2015, with citations to In re Steele, 32 Cal.4th 682, 692 (2004), and In re Hillery, 202 Cal.App. 2d 293 (1962). ECF No. 18-6 (Lod. Doc. 6).

         Petitioner’s next pro se habeas petition was filed on November 16, 2017, in the Sacramento County Superior Court. ECF No. 18-7 (Lod. Doc. 7). On January 25, 2018, the petition was denied as “baseless” and was explicitly found to be untimely. ECF No. 18-8 (Lod. Doc. 8).

         On September 5, 2018, petitioner filed a pro se habeas petition in the California Court of Appeal for the Third Appellate District. ECF No. 18-9 (Lod. Doc. 9). It was denied without comment on September 27, 2018. ECF No. 18-10 (Lod. Doc. 10).

         Petitioner then proceeded to file a petition for writ of habeas corpus in the California Supreme Court on October 11, 2018. ECF No. 18-11 (Lod. Doc. 11). The petition was denied on December 19, 2018. ECF No. 18-12 (Lod. Doc. 12).

         C. Federal Petitions

         On March 5, 2017, petitioner filed a petition for writ of habeas corpus in Panighetti v. Gustello (Panighetti I), No. 2:17-cv-1001 MCE DMC (E.D. Cal.). ECF No. 18-13 (Lod. Doc. 13). The petition challenged his conviction in Sacramento County Superior Court case number 14F07183. Id. The petition was dismissed because petitioner had failed to exhaust his state court remedies prior to filing suit in federal court. ECF Nos. 18-15 (Lod. Doc. 15), 18-16 (Lod. Doc. 16).

         The original petition in this case was filed on July 1, 2018. ECF No. 1. Petitioner then filed a motion to amend the petition (ECF No. 4) and a motion to consolidate the petition in this case with the petition in Panighetti I (ECF No. 5). At that time, the petition in Panighetti I had already been dismissed for failure to exhaust and the motion to consolidate was denied. ECF No. 6. However, because it appeared that petitioner may have exhausted the claims he initially tried to bring in Panighetti I, he was given leave to amend. Id. The first amended petition was filed on October 19, 2018. ECF No. 11.

         The first amended petition seeks relief on ten separate grounds. Id. at 8-12. Grounds 1 through 4 attempt to challenge petitioner’s 1996 conviction for assault with a deadly weapon with great bodily injury, which was used to enhance his 2015 sentence, on grounds of judicial bias, instructional error, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. Id. at 8-9. The remaining six grounds challenge petitioner’s 2015 conviction in Sacramento County Superior Court case number 14F07183 on grounds of prosecutorial misconduct, ineffective assistance of trial and appellate counsel, judicial bias/abuse of discretion, unconstitutional use of the 1996 conviction to enhance the sentence, and use of false evidence related to his 1996 conviction. Id. at 10-12.

         II. Motion to Dismiss

         Respondent argues that the petition should be dismissed on several grounds. ECF No. 17. First, respondent argues that the petition violates Rule 2(e) of the Rules Governing Section 2254 Cases because it challenges convictions from more than one state court case. Id. at 3. Next, respondent asserts that the petition is untimely because it was filed over ten months after the expiration of the statute of limitations for the 2015 conviction and petitioner is not entitled to any tolling. Id. at 3-5. Respondent also asserts that the petition is unexhausted. Id. at 6-7. Finally, respondent argues that petitioner’s challenge to his 1996 conviction is foreclosed by the holding in Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). Id. at 7-8.

         Petitioner’s opposition to the motion is spread over multiple filings interspersed with exhibits, making his arguments, at times, difficult to track. See ECF Nos. 19, 22, 23, 26, 27. In responding to the motion, petitioner acknowledges that Grounds 1 through 4 of the petition are challenges to his 1996 conviction, while the remaining grounds challenge his 2015 conviction, and he states that he will amend to bring the claims as two separate petitions if required. ECF No. 19 at 10; ECF No. 22 at 1, 10. Petitioner also appears to argue that the petition is not untimely because he was investigating his claims in a diligent and reasonable manner, and so his state petitions and the time he was investigating should toll the statute of limitations. ECF No. 19 at 15, 62-63, 80-81; ECF No. 22 at 2-3, 8; ECF No. 23 at 3. He also appears to claim that he is entitled to equitable tolling and that his petition is excused from untimeliness because he is actually innocent. ECF No. 19 at 10, 68-69; ECF No. 22 at 2, 4; ECF No. 23 at 1-2; ECF No. 26 at 1-3, 5-6. Finally, petitioner argues that his claims are exhausted and that Lackawanna does not bar his challenges to his 1996 conviction. ECF No. 19 at 2-3, 49-51; ECF No. 22 at 3, 5-9; ECF No. 23 at 3, 6.

         A. 1996 Conviction

         Under 28 U.S.C. § 2254(a), a federal 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 the laws or treaties of the United States.” The Supreme Court has interpreted § 2254 as requiring that the habeas petitioner be “‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (citation omitted). A habeas petitioner is not considered in custody on a prior conviction just because it was used to enhance a subsequent conviction for which he is currently in custody. ...


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