(HC) Riley v. Lazano

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICO LYNTICE RILEY, No. 2: 18-cv-3050 TLN KJN P 11 Petitioner, 12 v. FINDINGS & RECOMMENDATIONS 13 PATRICK COVELLO, et al., 14 Respondents. 15 16 Introduction 17 Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion to amend 19 his petition to add two claims. (ECF No. 28.) For the reasons stated herein, the undersigned 20 recommends that petitioner’s motion to amend be denied on the grounds that the new claims are 21 barred by the statute of limitations and not exhausted. 22 Legal Standard 23 Leave to amend a habeas petition is governed by Federal Rule of Civil Procedure 15(a) 24 and “‘shall be freely given when justice so requires.’” Morris v. United States Dist. Court, 363 25 F.3d 891, 894 (9th Cir. 2004) (quoting Fed. R. Civ. P. 15(a)). “The policy of allowing 26 amendments ‘is to be applied with extreme liberality.’” Waldrip v. Hall, 548 F.3d 729, 732 (9th 27 Cir. 2008) (citation omitted). Courts generally consider five factors: “‘bad faith, undue delay, 28 prejudice to the opposing party, futility of the amendment, and whether the party has previously 1 amended his pleadings.’” Id. (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 2 “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin, 3 59 F.3d at 845-46 (denial of leave to add meritless claims); see also Caswell v. Calderon, 363 4 F.3d 832, 837-38 (9th Cir. 2004) (denial of leave to add unexhausted, meritless claim). 5 Background 6 Petitioner challenges his 2013 conviction for three counts of forcible sexual penetration 7 with a foreign object (Cal. Penal Code § 289(a)(1)), two counts of sodomy (Cal. Penal Code 8 § 286(c)(2)) and one count of rape (Cal. Penal Code § 261(a)(2)). (ECF No. 24-12 at 2.) The 9 jury also found true the allegation that petitioner bound the victim as to all counts except the rape. 10 (Cal. Penal Code §667.61(e)(5).) (Id.) Pursuant to the Three Strikes law, petitioner was 11 sentenced to a determinate term of 46 years and a consecutive aggregate indeterminate term of 12 150 years to life. (Id.) 13 This action proceeds on petitioner’s original petition filed, pursuant to the mailbox rule, 14 on November 19, 2018. (ECF No. 1.) In claim one, petitioner alleges that the prosecutor violated 15 Batson v. Wheeler, 376 U.S. 79 (1986) by using a peremptory challenge to excuse African- 16 American prospective juror Danica D. based solely on her race. (Id. at 16-17.) In claim two, 17 petitioner alleges that the trial court’s failure to retain jury questionnaires prevented him from 18 effectively presenting his Batson claim, in violation of his right to due process. (Id. at 18.) In 19 claim three, petitioner alleges that his trial counsel was ineffective for failing to investigate and 20 subpoena witness Mariam Beards and other defense witnesses. (Id. at 19-20.) In claim four, 21 petitioner alleges that appellate counsel was ineffective for failing to raise the ineffective 22 assistance of counsel claim alleged in claim three. (Id. at 21.) 23 In the pending motion to amend, filed July 9, 2020, pursuant to the mailbox rule, 24 petitioner seeks leave to file an amended petition adding two new claims. (ECF No. 28.) In the 25 proposed new claims, petitioner alleges that trial counsel was ineffective during voir dire for 26 failing to strike proposed jurors 1, 2, 5, 6, 7, 9 and 12 as biased, and that appellate counsel was 27 ineffective for failing to raise this ineffective assistance of counsel claim on appeal. (Id. at 22-23, 28 25.) 1 Discussion 2 Respondent opposes petitioner’s motion to amend on the following grounds. First, 3 respondent argues that petitioner’s proposed new ineffective assistance of appellate counsel claim 4 is futile. Second, respondent argues that petitioner’s proposed new claims are barred by the 5 statute of limitations. Third, respondent argues that petitioner’s proposed new claims are not 6 exhausted. Fourth, respondent argues that petitioner’s motion to amend should be denied because 7 of petitioner’s undue delay in filing the motion. 8 Statute of Limitations 9 Under 28 U.S.C. § 2244(d)(1), state prisoners have only one year in which to file their 10 federal habeas petitions. The one-year limitations period begins to run from the latest of: 11 (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; 12 (B) the date on which the impediment to filing an application created 13 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 14 State action; 15 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly 16 recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 17 (D) the date on which the factual predicate of the claim or claims 18 presented could have been discovered through the exercise of due diligence. 19 20 28 U.S.C. § 2244(d)(1)(A)-(D). 21 In the instant case, the record does not disclose a state impediment that prevented the 22 filing of the motion to amend/amended petition, reliance on new Supreme Court law, or the 23 assertion of new facts that could not have been discovered earlier through the exercise of due 24 diligence. Accordingly, the triggering date for the running of the statute of limitations in this case 25 is that set forth in subsection (A). 26 On November 29, 2017, the California Supreme Court denied petitioner’s petition for 27 review. (ECF No. 24-14.) Petitioner’s conviction became final 90 days later on February 27, 28 2018. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (the period of direct review for 1 the purpose of AEDPA’s statute of limitation period “includes the period within which a 2 petitioner can file a petition for writ of certiorari from the United States Supreme Court.”). The 3 limitations period began to run the next day and expired on February 28, 2019. Petitioner’s new 4 claims, filed July 9, 2020, are time barred unless he is entitled to statutory or equitable tolling. 5 AEDPA’s statute of limitations is suspended for the time during which a “properly-filed” 6 application for post-conviction relief is pending in state court, i.e., statutory tolling. See 28 7 U.S.C. § 2244(d)(2). The undersigned herein summarizes petitioner’s petitions for post- 8 conviction relief filed in state court. 9 Pursuant to the mailbox rule, on October 21, 2018, petitioner filed a habeas corpus 10 petition in the Sacramento County Superior Court. (ECF No. 24-15 at 26.) On December 11, 11 2018, the Superior Court denied this petition. (ECF No. 24-16.) Pursuant to the mailbox rule, on 12 September 22, 2019, petitioner filed a habeas corpus petition in the California Supreme Court. 13 (ECF No. 24-17 at 14.) The California Supreme Court denied this petition on January 22, 2020. 14 (ECF No. 24-18.) 15 Assuming petitioner is entitled to statutory tolling for the entire time his state petitions 16 were pending, i.e., from October 21, 2018 to January 22, 2020, petitioner is entitled to 458 days 17 of statutory tolling. Adding 458 days to February 28, 2019, extends the statute of limitations to 18 May 31, 2020. Petitioner filed his proposed new claims on July 9, 2020. Therefore, these new 19 claims are time barred unless petitioner is entitled to equitable tolling. See Holland v. Florida, 20 560 U.S. 631, 649 (2010) (a prisoner who files a federal habeas petition after the expiration of the 21 one-year statute of limitations may be entitled to equitable tolling). Petitioner makes no claim for 22 equitable tolling. 23 In the motion to amend, petitioner argues that his motion should be granted because his 24 new claims relate back to the timely claims raised in the original petition. For the reasons stated 25 herein, the undersigned finds this argument without merit. 26 Under certain circumstances, a claim set forth in an amended petition may “relate back” to 27 the filing date of the original petition under Fed. R. Civ. P. 15(c). However, the original and 28 proposed amended claims must be “tied to a common core of operative facts[;]” the proposed 1 amended claim “does not relate back (and thereby escape AEDPA’s one-year time limit) when it 2 asserts a new ground for relief supported by facts that differ in both time and type from those the 3 original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005); see also Hebner v. 4 McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (new claim did not relate back to original petition 5 because it was “separated in time and type.”) (citing Mayle, 545 U.S. at 657). 6 As discussed above, the original petition raises four claims. In claim one, petitioner 7 alleges that the prosecutor violated Batson v. Wheeler, 376 U.S. 79 (1986), by using a peremptory 8 challenge to excuse African-American prospective juror Danica D. based solely on her race. 9 (ECF No. 1 at 16-17.) In claim two, petitioner alleges that the trial court’s failure to retain jury 10 questionnaires prevented him from effectively presenting his Batson claim, in violation of his 11 right to due process. (Id. at 18.) In claim three, petitioner alleges that his trial counsel was 12 ineffective for failing to investigate and subpoena witness Mariam Beards and other defense 13 witnesses. (Id. at 19-20.) In claim four, petitioner alleges that appellate counsel was ineffective 14 for failing to raise the ineffective assistance of counsel claim alleged in claim three. (Id. at 21.) 15 In the motion to amend, petitioner raises new claims alleging ineffective assistance of trial 16 and appellate counsel. (ECF No. 28.) Petitioner alleges that trial counsel was ineffective for 17 failing to use peremptory challenges to remove potential jurors 1, 2, 5, 6, 7, 9 and 12 based on 18 bias they expressed during voir dire. (Id. at 22.) For example, petitioner alleges that potential 19 juror six was biased because her mother had been sexually assaulted. (Id.) Petitioner alleges that 20 potential juror seven was biased because her sister had been raped and they had a couple of 21 friends who had been raped. (Id. at 23.) Petitioner alleges that appellate counsel was ineffective 22 for failing to raise this issue of ineffective assistance of counsel claim on appeal. (Id. at 25.) 23 The facts alleged in petitioner’s new ineffective assistance of trial and appellate counsel 24 claims differ in time and type from the facts alleged in support of the claims raised in the original 25 petition. In the new ineffective assistance of counsel claim, petitioner alleges that trial counsel 26 was ineffective for failing to challenge biased jurors during voir dire. In contrast, in the original 27 petition, petitioner alleges that trial counsel failed to investigate and present defense witnesses 28 during trial. The facts regarding these ineffective assistance of counsel claims are unrelated, as 1 one concerns trial counsel’s conduct during voir dire and the other concerns trial counsel’s 2 alleged failure to investigate and subpoena witnesses for trial. 3 The fact that petitioner raises ineffective assistance of counsel claims in the original and 4 amended petition is not sufficient to support relation back. See United States v. Marulanda, 226 5 F.App’x 709, 710-11 (9th Cir. 2007) (claim that trial counsel was ineffective for referring to 6 previous trial on same charge did not relate back to claims that counsel was ineffective for 7 “insulting the judge, failing to object to the jury selection process, failing to inform [defendant] of 8 his right to testify, and failing to object to the government’s use of the word ‘Columbian’ at 9 trial.”) 10 The facts alleged in support of the Batson claim raised in the original petition are 11 unrelated to the facts alleged in support of the ineffective assistance of counsel claim raised in the 12 amended petition. The Batson claim alleges misconduct by the prosecutor, whereas the 13 ineffective assistance of counsel claim alleged in the amended petition alleges misconduct by trial 14 counsel. 15 The undersigned also finds that petitioner’s new ineffective assistance of appellate counsel 16 claim does not relate back to the claims raised in the original petition because it is based on 17 different facts as the claims raised in the original petition. See also Schneider v. McDaniel, 674 18 F.3d 1144, 1151 (9th Cir. 2012) (upholding district court’s rejection of petitioner’s argument that 19 any claim of ineffective assistance of appellate counsel based on the failure to raise an issue on 20 appeal relates back to any other claim alleging ineffective assistance of appellate counsel for 21 failing to raise an issue appeal: “A holding that relation back is available in that circumstance 22 would stand the Supreme Court’s decision in Mayle on its head.”) 23 For the reasons discussed above, the undersigned finds that petitioner’s ineffective 24 assistance of trial and appellate counsel claims raised in the amended petition do not relate back 25 to the claims raised in the original petition. Accordingly, petitioner’s motion to amend should be 26 denied because the new claims are time barred, and it would be futile to add them to the petition. 27 //// 28 //// 1 Exhaustion 2 Respondent also argues that adding the proposed new claims would be futile because they 3 are not exhausted. 4 The exhaustion of available state remedies is a prerequisite to a federal court’s 5 consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 6 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by 7 providing the highest state court with a full and fair opportunity to consider all claims before 8 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v. 9 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). 10 Petitioner did not raise his new claims in the petition for review filed in the California 11 Supreme Court (ECF No. 24-13) or in the habeas corpus petition filed in the California Supreme 12 Court on September 22, 2019 (ECF No. 24-17). Therefore, petitioner’s new claims are not 13 exhausted. Accordingly, the motion to amend should be denied because the new claims are not 14 exhausted, and it would be futile to add them to the petition. 15 The undersigned also finds, for the reasons stated herein, that a stay of this action in order 16 for petitioner to exhaust the unexhausted claims raised in the amended petition is not appropriate 17 because the claims are time barred. 18 There are two kinds of stays available when a petitioner wants to present a claim for 19 which he has not exhausted state court remedies: the Rhines stay and the Kelly stay. See Rhines 20 v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other 21 grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). 22 Petitioner is not entitled to a stay under either Rhines or Kelly because his new claims are 23 not timely. See Johnson v. Federal Court Judges, 2020 WL 2114931, at *6 (C.D. Cal. March 20, 24 2020) (petitioner not entitled to stay under either Rhines or Kelly if claims are time barred); King 25 v. Frauenheim, 2016 WL 687867, at *6 (N.D. Cal. Feb. 19, 2016) (neither a Rhines nor Kelly was 26 appropriate because staying the proceedings would not eliminate the untimeliness problem). 27 //// 28 //// 1 Remaining Arguments 2 Respondent also argues that adding petitioner’s proposed new ineffective assistance of 3 || appellate counsel claim would be futile because there is no scenario in which the court could 4 | grant relief as to this claim. (ECF No. 31 at 3-4.) Respondent also argues that the motion to 5 || amend should be denied because of petitioner’s undue delay. (Id. at 7-8.) The undersigned need 6 || not reach these arguments because it is clear that the motion to amend should be denied on the 7 || grounds that the new claims are barred by the statute of limitations and not exhausted. 8 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion to file an 9 | amended petition raising two new claims (ECF No. 28) be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be served and filed within fourteen days after service of the objections. The 16 | parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 || Dated: November 2, 2020 i Fensbl A Abar 20 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28