United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural Background
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.
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)).
State Collateral Review
filed a pro se petition for writ of habeas corpus in the
California Court of Appeal for the Third District on November
26, 2015. 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.
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).
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).
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).
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).
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.
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.
Motion to Dismiss
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.
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.
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. ...