Opinion
No. C 12-5623 SI (pr)
03-12-2014
GEORGE J. ALVAREZ, Petitioner, v. CONNIE GIPSON, Warden, Respondent.
ORDER OF DISMISSAL
INTRODUCTION
George J. Alvarez, an inmate at the Corcoran State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely. Alvarez has not filed an opposition, although he had argued in his amended petition that his failure to meet the statute of limitations deadline should be excused due to his actual innocence. For the reasons discussed below, the court dismisses the untimely petition.
BACKGROUND
Following a jury trial in Monterey County Superior Court, Alvarez was convicted of forcible rape, kidnapping to commit another crime, residential burglary, first degree robbery, misdemeanor child molestation, and misdemeanor threats of violence. The jury found true the allegation that he was not eligible for parole, and that the circumstances under which he committed the sex offenses mandated a life sentence. On March 30, 2002, Alvarez was sentenced to 31 years to life in prison.
He appealed. The California Court of Appeal affirmed the judgment of conviction on March 25, 2004. The California Supreme Court denied his petition for review on June 9, 2004.
More than five years later, Alvarez filed several habeas petitions in the state courts. First, he filed a habeas petition in Monterey County Superior Court on October 29, 2009; that petition was denied on November 20, 2009. Second, he filed a habeas petition in the California Supreme Court on March 18, 2010; that petition was denied on October 13, 2010, with citations to In re Robbins, 18 Cal. 4th 770, 780 (Cal. 1988), and In re Clark, 5 Cal. 4th 750 (Cal. 1993). The citations to Robbins and Clark indicate the court rejected the petition as untimely under state law. See Walker v. Martin, 131 S. Ct. 1120, 1124 (2011).
Alvarez then filed his first federal habeas petition, Alvarez v. Lopez, N. D. Cal. No. C 11-373 SI. After respondent moved to dismiss the petition, Alvarez moved to withdraw the unexhausted petition so that he could pursue state court remedies. The court granted Alvarez's request and dismissed the action.
Alvarez then returned to state court to file three more collateral challenges to his conviction. Alvarez filed a petition for writ of mandate/prohibition in the California Court of Appeal on February 15, 2012; that petition was denied on March 6, 2012. Alvarez next filed a petition for review of that decision in the California Supreme Court on March 22, 2012; that petition was denied on May 9, 2012. Alvarez then filed a habeas petition in the California Supreme Court on July 9, 2012; that petition was denied on September 19, 2012.
Alvarez then filed this action. The petition has a signature date of October 24, 2012, came to the court in an envelope with no visible postmark, was stamped "received" at the courthouse on October 29, 2012, and was stamped "filed" on November 1, 2012. For purposes of the present motion, the court assumes the petition was mailed on the day it was signed, despite the absence of a proof of service. Due to Alvarez's status as a prisoner proceeding pro se, he receives the benefit of the prisoner mailbox rule, which deems most documents filed when they are given to prison officials to mail to the court rather than the day the document reaches the courthouse. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). His federal petition is deemed filed as of October 24, 2012.
DISCUSSION
A. Petitioner Missed The Habeas Statute Of Limitations Deadline
Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time has passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A-D).
Here, the judgment became final and the limitations period started on September 7, 2004, ninety days after the California Supreme Court denied the petition for review on June 9, 2004. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (direct review period includes the period during which the petitioner could have sought further direct review, regardless of whether he did so). The presumptive deadline for Alvarez to file his federal petition was September 7, 2005.
Alvarez urges that he should receive a delayed start to the limitations period for his newly discovered evidence of a 2012 California Supreme Court case that shows his actual innocence. See 28 U.S.C. § 2244(d)(1)(D) (one-year limitations period does not start until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence"). The "actual innocence" argument is discussed and rejected later in this order.
The one-year limitations period may be tolled for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Here, Alvarez did not file any state habeas petition during the one-year limitations period ending on September 7, 2005. His state habeas petitions filed in 2009 and later did not toll the limitations period that had already expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). He therefore receives no statutory tolling.
The one-year limitations period can be equitably tolled because § 2244(d) is not jurisdictional. Holland v. Florida, 560 U.S. 631, 645 (2010). '"A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.'" Id. at 655 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Alvarez makes no argument for any equitable tolling, and none is apparent. Equitable tolling is not warranted. B. Petitioner Does Not Pass Through The Actual Innocence Gateway
A federal court may hear the merits of successive, abusive, procedurally defaulted, or untimely claims if the failure to hear the claims would constitute a miscarriage of justice. The Supreme Court limits the "miscarriage of justice" exception to habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S. at 496). Under this exception, a petitioner may establish a procedural "gateway" permitting review of defaulted claims if he demonstrates "actual innocence." Schlup, 513 U.S. at 316 & n.32. The actual innocence gateway established in Schlup is available to a petitioner whose petition is otherwise barred by AEDPA's statute of limitations. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). "[I]f a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claim." Schlup, 513 U.S. at 316. The required evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error. Id. at 321.
"One way a petitioner can demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime." Vosgien v. Persson, No. 12-35397, slip op. at 7 (9th Cir. Feb. 13, 2014). In Vosgien, the petitioner had been convicted of several crimes in Oregon, including "compelling prostitution" based on his acts of bribing his daughter to procure sexual favors for himself. Several years later and in a different case, an Oregon appellate court interpreted the compelling prostitution statute to apply only to defendants who induced someone to engage in prostitution with third parties. Id. at 7-8. The parties in Vosgien agreed that the petitioner "cannot, as a legal matter, have committed the crime of compelling prostitution based on the facts under which he was convicted." Id. at 8. Vosgien held that the petitioner "has thus successfully demonstrated, in light of subsequent Oregon case law, actual innocence under Schlup as to the compelling prostitution convictions." Id. at 10. The untimeliness of his federal petition was excused because he now passed through the Schlup gateway. See Vosgien, slip op. at 10-11. Vosgien recognized a serious limit to the breadth of that gateway. "[A] demonstration of actual innocence under Schlup cannot excuse a petitioner's procedural default for more than the counts as to which he has shown actual innocence." Vosgien, slip op. at 10. In Vosgien, that meant that the petitioner who was now actually innocent of compelling prostitution could proceed with his claims challenging the conviction for compelling prostitution, but not the convictions in the same case for rape, sodomy, and sexual abuse.
Here, Alvarez argues that a new California Supreme Court decision shows he is actually innocent of kidnapping "Doe 1" for purposes of rape because his movement of her about 75 feet does not amount to kidnapping. Had the California Supreme Court issued a ruling that effectively decriminalized Alvarez's kidnapping-type conduct, Vosgien would require this court to excuse his otherwise time-barred claims challenging that kidnapping for rape conviction. The California Supreme Court did not issue such a ruling, however. The court now describes Alvarez's rape and the new-ish California Supreme Court decision, and then explains why the latter does not affect the conviction for the former.
1. The Kidnapping Committed By Alvarez
The only crime as to which Alvarez claims actual innocence is the kidnapping for the purposes of rape of Doe 1, so only that crime is discussed here. The California Court of Appeal described the evidence at trial relating to that crime:
In May 2000, Doe 1 rented a room in her Salinas home to Shanal J. and Shanal'sCal. Ct. App. Opinion (Resp. Ex. B) at 2-4. Alvarez then raped Doe 1.
boyfriend. The boyfriend moved out that summer. In April 2001, Shanal moved out, leaving behind a stereo and other items.
On May 4, 2001, . . . Doe 1 got into her car and was buckling up her four-year-old son when defendant approached and asked for Shanal. Doe 1, who had not met defendant before, noticed that he had a "very distinctive face." When she said Shanal had moved out a few weeks ago, defendant asked if she knew anything about Nuestra Familia. Doe 1 said she did not. Defendant then asked Doe 1 to get out of the car. He calmly said he wanted to discuss things that he did not want her son to hear. Doe 1 became scared when she saw what looked like the "butt" of a gun in defendant's waistband. Concerned her son might cry or upset defendant, she decided to get out of her car to speak with defendant.
Defendant said Shanal had been "doing some prostitution" for Nuestra Familia, that she had made money off their clients, and that she owed $500 which he had been "sent to collect." He told Doe 1 her house was being watched and that he knew she had a teenaged daughter who "was by herself a lot." Doe 1 told defendant he could have Shanal's pager number and the stereo Shanal had left. When defendant said they needed to go inside the house, Doe 1 sat in her porch chair and told defendant he "could go inside, take whatever he wanted." She was crying and "felt intimidated" as defendant insisted they both needed to go inside. Defendant is "fairly big," Doe 1 is 5'2", and defendant stayed "really close" to her as he "guided" her towards her front door. Doe kept saying she did not want to go inside. Her hands shook and she fumbled with her keys while defendant seemed "amused" by her obvious fear.
Defendant bolt locked the front door after they went inside. Doe 1 felt nauseated; she sat on a couch and put her head down. Defendant, who continued to be "amused" by Doe 1's discomfort, remained "calm" as he checked whether anyone else was present. He waved his gun, which was wrapped in a red rag, as he walked around the living room. Doe asked if he could "please put that away" because "I feel nauseous." Defendant put the gun away, and she did not recall seeing it again until later. Defendant next said they needed to go upstairs to look at Shanal's stereo. He guided Doe 1 upstairs, walking "directly behind" her. She showed him Shanal's room and then started back towards the stairs, but defendant touched her waist and turned her, guiding her towards her own bedroom.
Once they entered her room, defendant closed Doe 1's door and locked it. As she sat on the bed crying, defendant stood and told her to pull her pants and underwear down. He spoke in a soft, calm voice. Doe 1 kept saying she was not "like Shanal," but she complied because she was scared and intimidated by defendant's size and his gun. At some point, he placed the object wrapped in the rag on the bed.
2. The Brents Decision
In People v. Brents, 53 Cal. 4th 599, 608-614 (Cal. 2012), the defendant contended that there was insufficient evidence to support the kidnapping special circumstance finding that made him eligible for the death penalty and that there was a related instructional error. The gruesome facts in Brents were that the defendant tried to suffocate and choke the victim, then put her alive "in the trunk of a borrowed car, drove her to a remote location, opened the trunk, poured gasoline on her, closed the trunk, poured gasoline on the outside of the trunk, and lit the gasoline on fire. [The victim] burned to death, trapped in the trunk." Id. at 601. The defendant was convicted of, among other things, first degree murder (Cal. Penal Code § 187(a)) and kidnapping (id. at § 207(a)), and the jury found true the special circumstance that the defendant committed the murder while engaged in a kidnapping offense (id. at § 190.2(a)(17)).
California Penal Code § 190.2(a) provides for a penalty of death or life without parole if one of the listed special circumstances has been found true. One of those special circumstances is: "The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, . . . Kidnapping." Cal. Penal Code § 190.2(a)(17)(B).
The burned car with the victim in the trunk was found about 16 miles from where she had been put in the trunk of that car, suggesting she had been driven about 16 miles. See Brents, 53 Cal. 4th at 604. (It is this physical distance that Alvarez seizes upon to make his actual innocence argument.) The law required that the kidnapping special circumstance "could not be merely incidental to the murder, with the murder being the defendant's primary purpose," although the special circumstance could be found if "there was a concurrent purpose to commit both the murder and one of the listed felonies." Id. at 608-09. The question in Brents was whether there was evidence from which the jury could infer an independent felonious purpose to kidnap the victim. See id. at 609. The court found that there was evidence from which the jury could infer an independent felonious purpose and discussed various theories that could support such an inference. First, the defendant could have killed the victim in the parking lot where he first assaulted her, but instead "chose to take her for a drive-and not just a few miles," before which time he "had not mentioned to anyone an intent to burn [the victim] alive, and her transgression would not seem to warrant so horrible a death. A reasonable jury therefore could infer that defendant was not sure what he wanted to do with [the victim] when he drove away with her in the trunk. He wanted to think about it, and going for a drive was his way of thinking about it." Id. at 609-10. Second, defendant may have planned initially to use the gasoline to destroy evidence of the earlier assault and then later decided to use the gasoline to kill the victim. Id. at 610. Third, the defendant may have had a legally adequate concurrent objective to kill her but "wanted first to drive her around in a locked trunk, thoroughly terrifying her before she actually died." Id. at 610 (emphasis in original). By driving the victim around in the trunk for such a long distance, he must have known "he was increasing her terror," and if inflicting that terror was at least one of his purposes, he had a legally adequate concurrent purpose. Id. After setting out these scenarios, the court returned to the relevant inquiry, i.e., whether it would be irrational for a jury to conclude the defendant intended to kidnap the victim for some reason that was in addition to and independent of his intent to murder her. "Although the evidence of such a goal is far from overwhelming, it is sufficient to support the jury's verdict." Id. at 611. The court refused to set aside the kidnapping special circumstance on the ground of insufficient evidence. See id. at 611.
The California Supreme Court also addressed a claim of jury instruction error regarding the kidnapping special circumstance in Brents, and granted relief on that claim. See id. at 611-614. The instructional error claim concerned "the need to find an independent felonious purpose to kidnap [the victim]" to support the kidnapping special circumstance finding. Id. at 611. The instruction had erroneous wording that stated the wrong target crime. The instructional error claim is largely irrelevant to the issues in the present case, except for one observation in Brents. The court stated that the wording error in the instruction was in a portion that was critical to the case in which the evidence could support an inference that defendant's only purpose was to kill and that he lacked an independent purpose to kidnap. The court stated: "Indeed, the evidence here of an independent purpose to kidnap was weak-although for the reasons previously stated [in the section about the sufficiency of the evidence], it was minimally sufficient." Id. at 614. (The phrase "minimally sufficient" is the second part of Brents that Alvarez seizes upon to make his actual innocence argument.) Brents concluded that the kidnapping special circumstance finding had to be set aside due to the instructional error. Id.
3. Alvarez Is Not Actually Innocent of Kidnapping For Rape
If Brents had defined the crime of kidnapping in a way that meant that Alvarez's conduct did not amount to kidnapping, his untimely federal habeas petition's challenge to the kidnapping could pass through the Schlup actual innocence gateway. See Vosgien, slip op. at 7, 10. Brents does not help Alvarez for the reasons explained below. Even saying that comparing Alvarez's case and Brents is like comparing apples and oranges suggests too close a kinship - it's more like comparing apples and typewriters.
Brents did not address the crime of which Alvarez was convicted. The kidnapping special circumstance is not the same as the crime of kidnapping for rape. The former narrows the range of first degree murderers who are eligible for the death penalty whereas the latter is a separate and additional crime from the rape that is the purpose of the kidnapping. The statutory language is not even parallel. Compare Cal. Penal Code § 190.2(a)(17)(B) (quoted in footnote 1) with Cal. Penal Code § 209(b)(1) ("Any person who kidnaps or carries away any individual to commit . . . rape . . . shall be punished by imprisonment in the state prison for life with the possibility of parole"). Special circumstances and crimes are analytically different. See generally Morales v. Woodford, 388 F.3d 1159, 1173-74 (9th Cir. 2004) (distinguishing first degree lying in wait murder and special circumstance lying in wait). The Brents holding about the kidnapping special circumstance does not transfer to the crime of aggravated kidnapping in general.
Kidnapping to commit rape is a type of aggravated kidnapping. California Penal Code § 209 and § 209.5 define the felonies of kidnapping for robbery, for extortion or ransom, for specified sex offenses, or to facilitate a carjacking. These are "sometimes called 'aggravated kidnappings.'" B. E. Witkin and N. Epstein, 1 California Criminal Law Crimes Against The Person, § 292 at 1125 (4th ed. 2012).
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Alvarez misreads Brents in his argument that the "California Supreme Court found 16 miles in the trunk of a car 'minimally sufficient' to support a finding of kidnapping." Docket # 4-1 at 3. The Brents decision's use of the phrase "minimally sufficient" pertained to whether there was sufficient evidence to support the jury's conclusion that the defendant intended to kidnap the victim for some reason that was in addition to and independent of his intent to murder her. See Brents, 53 Cal. 4th at 611, 614. Thus, even if Brents applied to the crime of aggravated kidnapping (which it does not), the holding pertained to the defendant's mental state rather than any movement requirement. That the victim was moved 16 miles was relevant only for the way it permitted inferences that would support the finding that the defendant had the intent required for the special circumstance. See id. at 609-11. Brents simply did not establish a 16-mile minimum for the movement necessary for the special circumstance, let alone for the crime of aggravated kidnapping.
California law regarding the movement necessary for the crime of kidnapping for rape remains as stated in California Penal Code § 209(b)(2), which is a codification of the rule expressed in People v. Rayford, 9 Cal. 4th 1 (Cal. 1994). Under California law, it is not the number of feet or miles the victim is moved, but instead whether the movement "is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present" in the rape. Cal. Penal Code § 209(b)(2); Rayford, 9 Cal. 4th at 22. The analysis is qualitative and requires consideration of the "scope and nature of the movement, as well as the context of the environment in which the movement occurred." People v. Dominguez, 39 Cal. 4th 1141, 1151-52 (Cal. 2006) (citation and internal quotation marks omitted). Circumstances to consider include "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." Dominguez, 39 Cal. 4th at 1152. See, e.g., id. 1151-52 (asportation element satisfied where the victim was moved about 25 feet from the shoulder of the road, down an embankment and partially into an orchard about 10-12 feet lower than the road's surface); Rayford, 9 Cal. 4th at 23 (asportation element satisfied where the victim was "forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot" where she was outside the view of passers-by); People v. Shadden, 93 Cal. App. 4th 164, 170 (Cal. Ct. App. 2001) (asportation element satisfied where victim was moved from front counter of store nine feet to a small back room where she would be out of public view and "made it less likely for others to discover the crime and decreased the odds of detection"); People v. Aguilar, 120 Cal. App. 4th 1044, 1049 (Cal. Ct. App. 2004) (asportation element satisfied where victim was moved 133 feet down a sidewalk at night from an illuminated area to a dark area, thereby making it harder to escape and providing defendant with an enhanced opportunity to commit additional crimes). Brents did not disturb the statutory definition or these holdings showing that more than a tape measure is needed to evaluate the asportation element of the crime of kidnapping for rape.
Under California law, Alvarez comes nowhere close to showing he is actually innocent of the crime of kidnapping for rape. Alvarez states that he moved his victim 75 feet. The unchallenged facts are that he moved the victim from the driveway of the house to the porch, then into her house, then up the stairs, and then into her bedroom, and then raped her. He moved her away from her young son who was with her in the car, and he locked the front door to the house after they entered the house, and locked the bedroom door after they entered the bedroom. By moving her from an open area into the house and upstairs to her room and locking doors behind them, Alvarez decreased the likelihood of detection, increased the danger inherent in Doe 1's foreseeable attempts to escape, and enhanced Alvarez's opportunity to commit additional crimes. See Dominguez, 39 Cal. 4th at 1152. He is not actually innocent of kidnapping for rape. Alvarez therefore does not pass through the Schlup gateway to enable habeas review of otherwise untimely claims challenging the kidnapping for rape conviction. Alvarez also is not entitled to a delayed start to the limitations period under 28 U.S.C. § 2244(d)(1)(D) because Brents does not provide a "factual predicate" for any claim: the law regarding asportation was and remains that stated in California Penal Code § 209(b)(2).
C. Summary
The limitations period began on September 7, 2004 and was not statutorily or equitably tolled. The limitations period expired on September 7, 2005. Alvarez does not pass through the actual-innocence gateway or have a delayed start of the limitations period based on the Brents case. His federal petition filed on October 24, 2012 is time-barred.
A certificate of appealability will not issue because this is not a case in which "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
CONCLUSION
Respondent's motion to dismiss is GRANTED. (Docket # 10.) The petition for writ of habeas corpus is dismissed because it was not filed before the expiration of the limitations period in 28 U.S.C. § 2244(d)(1). The clerk will close the file.
IT IS SO ORDERED. DATED: March 12, 2014
/s/_________
SUSAN ILLSTON
United States District Judge