Opinion
Case No. 5:19-cv-00947-JAK-KES
07-18-2019
RAYMOND KEITH REVIERE, Petitioner, v. KIMBERLY SEIBLE, Warden, Respondent.
AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Amended Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
On May 11, 2019, Petitioner Raymond Keith Reviere ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1 [signature date].) On May 30, 2019, the Court ordered Petitioner to show cause why the Petition should not be dismissed as untimely. (Dkt. 4 [the "OSC"].) On June 9, 2019, Petitioner constructively filed a response, which failed to demonstrate any basis for statutory or equitable tolling. (Dkt. 5 [signature date].)
On June 17, 2019, the Court issued a Report and Recommendation ("R&R"), recommending that the Petition be summarily dismissed as untimely. (Dkt. 7.) On July 7, 2019, Petitioner constructively filed objections to the R&R. (Dkt. 8.) This Amended R&R addresses those objections and continues to recommend that the Petition be summarily dismissed as untimely.
II.
BACKGROUND
On January 30, 1998, a jury convicted Petitioner of second degree robbery, with two prior robbery convictions based on guilty pleas. (Dkt. 1 at 2); see also People v. Reviere, No. E064950, 2016 WL 3098845 (May 25, 2016) (denying resentencing under Proposition 47and describing the factual and procedural history). Pursuant to California's Three Strikes Law, Petitioner received a sentence of 25 years to life on April 9, 1998. (Dkt. 1 at 2, 37.) Since his conviction, Petitioner has filed a number of habeas petitions in the San Bernardino County Superior Court, the California Court of Appeal, the California Supreme Court, and the Central District of California.
From 2004 to 2017, Petitioner filed seven habeas petitions in the Superior Court. See https://www.sb-court.org/divisions/civil-general-information/court-case-information-and-document-sales.
From 2001 to 2014, Petitioner filed three habeas petitions in the 4th Appellate District, Division 2. See https://appellatecases.courtinfo.ca.gov/.
From 2001 to 2017, Petitioner filed twelve habeas petitions in the California Supreme Court. See https://appellatecases.courtinfo.ca.gov/.
Per PACER (Public Access to Court Electronic Records), Petitioner filed five habeas petitions in the district court (other than the instant Petition), from 2000 to 2007. See https://www.pacer.gov/. (Case nos. 2007-cv-01429, 2006-cv-01404, 2001-cv-00947, 2000-cv-00262, and 2000-cv-00257.)
On January 30, 2018, the San Bernardino Superior Court granted one of Petitioner's habeas petitions in case no. WHCJS1700176, finding that the trial court incorrectly calculated Petitioner's pretrial custody credits at the time of his initial sentencing. (Id. at 37-42.) The court ordered that an amended abstract of judgment be issued to correct Petitioner's actual custody days. (Id. at 42.) The amended abstract of judgment was entered on February 5, 2018. (Id. at 43.) On May 11, 2019, Petitioner constructively filed the instant Petition, which attacks the validity of the guilty pleas underlying his Three Strikes sentence. (Dkt. 1.)
On May 30, 2019, the Court issued an OSC because the Petition appeared untimely. (Dkt. 4.) The Court determined that the Superior's Court entry of a new judgment restarted Petitioner's one-year statute of limitations under § 2244(d)(1). (Id. at 5, citing Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017)). Nevertheless, construing the dates in Petitioner's favor, the limitations period expired one year later on April 6, 2019 (i.e., over a month before he filed the Petition). The Court instructed Petitioner to discharge the OSC by showing that: (1) the limitations period began to run upon a different triggering event under 28 U.S.C. § 2244(d), and/or (2) he is entitled to statutory and/or equitable tolling. (Id. at 6-7.)
On June 9, 2019, Petitioner constructively filed a response, arguing that he is entitled to equitable and statutory tolling on the following grounds: (1) from November 1, 2017 to September 26, 2018, Petitioner could not access the law library because his vocational class assignment conflicted with law library hours, and (2) Petitioner filed a state habeas petition in the Superior Court in December 2017, in case no. WHCJS1700407, which was denied on January 30, 2018. (Dkt. 5.) In its initial R&R, the Court found that this response failed to demonstrate any basis for statutory or equitable tolling. (Dkt. 7.) On July 7, 2019, Petitioner objected to this finding (Dkt. 8), and his objections are addressed below.
III.
LEGAL STANDARDS
A. Statute of Limitations.
This action is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that AEDPA applies to cases filed after its effective date of April 24, 1996). AEDPA provides as follows:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--28 U.S.C. § 2244(d)(1).
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Thus, AEDPA "establishes a 1-year time limitation for a state prisoner to file a federal habeas corpus petition." Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). The statute of limitations period generally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). B. Statutory Tolling.
AEDPA provides for statutory tolling as follows:
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 shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2).
Statutory tolling "does not permit the reinitiation of a limitations period that has ended before the state petition was filed," even if the state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), cert. denied, 540 U.S. 924 (2003). C. Equitable Tolling.
In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court held that the AEDPA's one-year limitation period is subject to equitable where the petitioner shows that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented his timely filing. Id. at 649. "[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), cert. denied, 537 U.S. 1003 (2002). Consequently, equitable tolling will be justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
The burden of demonstrating that the AEDPA's one-year limitation period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (as amended).
IV.
DISCUSSION
A. The Limitations Period Elapsed in April 2019.
In Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017), the superior court amended the petitioner's judgment to correct his pretrial custody credits; the Ninth Circuit held that where a superior court order amends the petitioner's conviction or sentence (and directs that an amended abstract of judgment be prepared) to correct an illegality, the superior court order constitutes a new, intervening judgment pursuant to which the petitioner is in custody. Id. at 770. The Ninth Circuit concluded that the habeas petition filed after this new judgment was not second or successive, regardless of how many petitions the petitioner filed prior to the judgment. Id. Here too, the San Bernardino Superior Court issued an amended judgment to correct Petitioner's pretrial custody credits.
The amended judgment restarted the AEDPA one-year statute of limitations under § 2244(d)(1). Smith v. Williams, 871 F.3d 684, 988-89 (9th Cir. 2017); see also Marquez v. McDaniel, 729 F. App'x 583 (9th Cir. 2018) (memorandum) ("the one-year [AEDPA] period runs from the date of the amended judgment"); see also Shropshire v. Baca, 702 F. App'x 629 (9th Cir. 2017) (memorandum) ("AEDPA's statute of limitations clock restarts when a state-court judgment is amended.").
Here, the Superior Court issued its habeas grant on January 30, 2018 and entered the amended judgment on February 5, 2018. In its initial R&R, the Court calculated the limitations period from the date the amended judgment was entered (to construe the dates as favorably as possible to Petitioner), while noting:
In Thorns v. Sherman, 2017 WL 10527376, at *4 (C.D. Cal. Dec. 1, 2017), which presents a similar factual scenario, the Court calculated timeliness from the date when habeas relief was granted—not when the amended judgment was actually entered. There, however, the petition was timely whether calculated from the date of habeas grant
or the date the amended judgment was entered. Gonzalez recognized that under California law, the judgment of conviction is the "oral pronouncement" at sentencing; the "abstract of judgment" is the clerk's official recitation of the oral judgment of conviction, which must be provided to the state prison official charged with executing the judgment. 873 F.3d at 770.(Dkt. 7 at 6 n.5.) In his objections, Petitioner argues: "The Magistrate's conclusion that the entry of amended judgment restarted the AEDPA clock is contrary to the law of this Court," citing Thorns and Gonzalez. (Dkt. 8 at 4-5.) The Court, however, did not and need not decide which date restarted the AEDPA clock, because the Petition is untimely regardless.
According to the California Court of Appeal's online records, Petitioner did not appeal. See http://appellatecases.courtinfo.ca.gov/. Therefore, the judgment became "final" under § 2244(d)(1)(A), when the sixty-day period to seek direct review expired. See California Rules of Court, Rule 8.308(a); see also Thorns, 2017 WL 10527376, at *4 (where petitioner's superior court habeas petition was granted, resulting in an amended judgment, determining that the limitations period expired once year after the 60-day window to appeal). Calculated from the date of the habeas grant, the judgment became "final" on April 2, 2018; calculated from the date the amended judgment was entered, the judgment became "final" on April 6, 2018. Absent tolling, the limitations period expired one year later, on either April 2, 2019, or April 6, 2019.
Petitioner did not constructively file the Petition until May 11, 2019. Thus, absent tolling, the Petition is untimely, regardless of which of the two dates restarted the AEDPA clock. B. Petitioner Does Not Establish a Basis for Tolling.
1. Statutory Tolling: 2017 State Habeas Petition.
Petitioner's response to the OSC argued that he is entitled to statutory tolling for a habeas petition filed in the Superior Court in 2017. Petitioner stated that he filed a habeas petition in the San Bernardino Superior Court in December 2017 in case no. WHCJS1700407, which was then denied on January 30, 2018. (Id. at 4-6.) Online records confirm that case no. WHCJS1700407 was filed on December 15, 2017, and the petition was denied on January 30, 2018. This petition does not provide statutory tolling, because it was denied on the same day as the habeas grant and before entry of the amended the judgment; in other words, during the pendency of the petition, the AEDPA clock had not yet begun to run.
See https://www.sb-court.org/divisions/civil-general-information/court-case-information-and-document-sales.
As stated previously, Gonzalez and Thorns suggest that the limitations period restarts on the date of the habeas grant, not the date the amended judgment is entered by the clerk's office. Again, the Court need not decide which date restarted the AEDPA clock because the result is the same regardless.
In his objections to the initial R&R, Petitioner argues that there is a basis for statutory tolling because "'pending' ... includes the period between the lower court's judgment and the 'proper filing' of an application for review with a higher state court," citing Carey v. Saffold, 536 U.S. 214 (2002) and Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005). (Dkt. 8 at 4-5.) Petitioner, however, never sought further review in a higher court; therefore, his petition was not "pending" after the Superior Court issued its adverse decision on January 30, 2018. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (Under California's indeterminate timeliness rule, "[a]s long as the [petitioner] filed a petition for appellate review within a 'reasonable time,' he c[an] count as 'pending' (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court.")
Even assuming that Petitioner's AEDPA clock restarted on the day of his habeas grant and his other state petition was "pending" on the day of its denial (i.e., the overlap does provide statutory tolling), this only provides Petitioner with one day of statutory tolling. The Petition is still untimely by more than a month.
2. Equitable Tolling: Lack of Law Library Access.
In his response to the OSC, Petitioner also argued that he is entitled to equitable tolling because he could not access the law library from November 1, 2017, to September 26, 2018, due to a conflict between his vocational class and law library hours. (Dkt. 5 at 2-4.)
Courts generally hold that impeded law library access does not qualify as an extraordinary circumstance warranting tolling. See, e.g., Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) ("Ordinary prison limitations on [petitioner's] access to the law library and copier (quite unlike the denial altogether of access to his personal legal papers) were neither 'extraordinary' nor made it 'impossible' for him to file his petition in a timely manner."); Norwood v. Lockyer, 390 F. App'x 762, 763 (9th Cir. 2010) ("limited law library access, being moved to different cells, [and] temporary lockdowns" not "out of the ordinary for prison life ... that would have made it 'impossible' to file on time" and thus not basis for equitable tolling). In some circumstances, total denial of access to prison legal materials may support equitable tolling, so long as it causes the untimeliness. See Jackson v. Asuncion, 2018 WL 6516032, at *6 (C.D. Cal. Aug. 31, 2018), adopted 2018 WL 6507802; see also Oretga v. McDowell, 2018 WL 3203042, at *5 (C.D. Cal. June 5, 2018) ("A petitioner may be entitled to equitable tolling if he can demonstrate that a lack of law library access made it impossible for him to file a habeas petition. ... However, ordinary prison limitations on law library access do not warrant equitable tolling.") (emphases added), adopted 2018 WL 3203081; Rosati v. Kernan, 417 F. Supp. 2d 1128, 1132 (C.D. Cal. 2006) (holding that petitioner's complaints about limited access to the law library and legal materials did not warrant equitable tolling because petitioner did not show any causal connection between these events and his failure to timely file his habeas petition).
Here, Petitioner was able to file his state habeas petition (discussed in the previous section) in December 2017, during the time he was unable to visit the law library; this shows that his impeded law library access did not make it impossible for him to file the Petition on time. See Ramirez, 571 F.3d at 998 (noting that decision to deny tolling for lack of library access was supported by the fact that, during the same period of time, petitioner filed a "lengthy and well-researched" motion in federal court); Jackson, 2018 WL 6516032, at *7 ("[T]he fact that Petitioner was able to file a superior-court habeas petition ... [during the lockdown]—and well within the AEDPA limitation period—undermines his claim that the lockdowns and lack of library access prevented him from diligently pursuing state remedies."); Munns v. Sisto, 2008 WL 5003076, at *6 (C.D. Cal. Nov. 21, 2008) (finding no entitlement to equitable tolling for total denial of law library use where petitioner filed state habeas petition and a California Court of Appeal motion during that time period).
In fact, in his response to the OSC, Petitioner argued that his Ground Two and Three are "the exact same claims" as raised in the 2017 state petition, "minus the handwritten Ground One." (Dkt. 5 at 5.) Petitioner attached the state habeas denial, which describes the state petition as contesting his "guilty plea to the strike priors." (Id. at 23-24.) Petitioner's Ground One is substantially similar to the other two grounds for relief, as all three challenge the guilty pleas underlying his strike convictions and the trial court's failure to vacate the pleas. (See Dkt. 1.) Because Petitioner had already formulated his arguments in the state petition, which was filed and denied before the limitations period had begun to run, it does not appear that Petitioner needed additional time to research the Petition. Therefore, there is no showing that lack of law library access caused the untimely filing. See Anderson v. California, 2019 WL 1744850, at *5 (C.D. Cal. Mar. 26, 2019) (where petitioner argued that lack of law library access prevented timely filing, but he had previously filed state petition raising same legal arguments, holding that lack of access could not explain or excuse delay), adopted 2019 WL 2437002.
The Petition includes a handwritten Ground One, before typed briefing setting forth two other grounds for relief (which initially had been labeled Grounds One and Two but are relabeled by hand as Grounds Two and Three). (See Dkt. 1.) It seems plausible that the typed briefing might have been the same briefing submitted in the state habeas petition.
Finally, there is also no showing that Petitioner had been pursuing his rights diligently, because Petitioner has had access to the law library since September 2018 (i.e., six months before his limitations period elapsed), yet he did not file the Petition until May 2019.
In his objections to the R&R, Petitioner argues that only "reasonable diligence" is required, "not maximum feasible diligence," citing Holland, 560 U.S. 631. (Dkt. 8 at 7.) As Petitioner concedes, nearly eight months elapsed between the time he accessed the law library and the time he filed the Petition. Petitioner does not provide any reason for the eight-month delay; this does not constitute reasonable diligence, particularly because he raises essentially the same legal claims as raised in his state habeas petition. See, e.g., Escobedo v. Borders, 2017 WL 3888226, at *4 (C.D. Cal. June 20, 2017) (concluding that petitioner was not entitled to equitable tolling where he waited an additional eight months to file federal petition raising essentially the same grounds for relief as his state petition), adopted 2017 WL 3887853. --------
In his objections to the R&R, Petitioner argues that he could not learn of the change in his "federal procedural circumstance" that occurred when his state court judgment was amended, because he did not have law library access to research Gonzalez. (Dkt. 8 at 4.) Again, Petitioner encounters a causation issue. He cannot show that his inability to research Gonzalez caused his untimely filing, as required for equitable tolling. See Spitsyn, 345 F.3d at 799. In the Petition, Petitioner neither mentions Gonzalez nor argues that the Petition is timely due to entry of the amended judgment. (See Dkt. 1.) Moreover, had Petitioner diligently conducted research to discover Gonzalez, he could have filed the Petition within the six-month window between the time he regained law library access and the time the limitations period elapsed. C. Petitioner Does Not Establish a New Limitations Period Under § 2244(d)(1)(B) for a State-Created Unconstitutional Impediment.
In his objections to the R&R, Petitioner argues that his inability to access the law library delayed commencement of the AEDPA limitations period pursuant to 28 U.S.C. § 2244(d)(1)(B). (Dkt. 8 at 2.) This section provides that if "the applicant was prevented from filing" a federal habeas petition by an "impediment ... created by State action in violation of the Constitution or laws of the United States," then the limitations period will commence anew from "the date on which the impediment to filing ... is removed." 28 U.S.C. § 2244(d)(1)(B). Petitioner argues that his inability to access the law library "constitutes an 'impediment' to Petitioner's 'right of access to the courts,'" citing Bounds v. Smith, 430 U.S. 817 (1977). (Dkt. 8 at 2.)
A claim pursuant to § 2244(d)(1)(B), however, "must satisfy a far higher bar than that for equitable tolling." Ramirez, 571 F.3d at 1000. Further, "[t]here is no constitutional right to file a timely § 2254 petition," and Petitioner must show that the impediment "altogether prevented him from presenting his claims in any form, to any court." Id. at 1001 (emphasis in original). Petitioner submitted essentially the same habeas claims to the San Bernardino Superior Court during the claimed impediment, showing that he was not denied his constitutional right of access to the courts. See, e.g., Martinez v. Tampkins, 2016 WL 7632798, at *2 (C.D. Cal. Oct. 25, 2016) (no showing of inability to access the courts where petitioner filed state habeas petition during that period), adopted 2017 WL 31525. Petitioner therefore is not entitled to an alternate AEDPA trigger date based on a state-created impediment.
V.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Amended Report and Recommendation; and (2) dismissing the Petition with prejudice. DATED: July 18, 2019
/s/_________
KAREN E. SCOTT
United States Magistrate Judge