(HC) Wilson v. Sherman

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JEROME WILSON, Case No. 1:19-cv-01602-HBK

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION AS UNTIMELY AND

13 v. FOR FAILURE TO STATE A CLAIM1

14 STU SHERMAN, OBJECTIONS DUE IN TWENTY-ONE

DAYS

15 Respondent.

(Doc. No. 1)

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17 Petitioner Jerome Wilson (“petitioner” or “Wilson”), a state prisoner, initiated this action

18 by filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 on November 4,

19 2012.2 (Doc. No. 1). On March 20, 2020, the court ordered petitioner to show cause why his

20 petition should not be dismissed as untimely. (Doc. No. 5). After being granted three extensions

21 of time, petitioner filed a response to the show cause order on September 11, 2020. (Doc. No.

22 12). For the reasons set forth below, the court recommends that the petition be dismissed with

23 prejudice as time barred.

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25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

(E.D. Cal. 2019).

26 2 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the

date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v.

27 Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536

U.S. 214 (2002).

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1 I. BACKGROUND

2 Wilson is serving an aggregate twenty (20) year state prison sentence stemming from his

3 plea-based October 3, 2013 conviction for shooting into an inhabited dwelling, committing bodily

4 harm on the victim, and using a firearm that was entered by the Kern County Superior Court.

5 (Doc. No. 1 at 51). Wilson’s aggregate twenty (20) year sentence results from his seven (7) year

6 base sentence, a three (3) year enhancement under Cal. Penal Code § 12022.7 for great bodily

7 injury, and a ten (10) year firearm enhancement under Cal. Penal Code § 12022.53. (Id.). Wilson

8 did not appeal his sentence or conviction. (Id.).

9 Effective January 1, 2018, the California legislature in Senate Bill 620 amended

10 California Penal Code § 12022.53, giving the state court the discretion to strike firearm

11 enhancements. In 2018 and 2019, Wilson sought habeas relief from the state superior, appellate,

12 and supreme courts, arguing that Senate Bill 620 was retroactive, and his ten (10) year firearm

13 sentence enhancement should be stricken due to the new state sentencing law. The state courts

14 denied Wilson relief, leaving his ten (10) year sentence enhancement intact. (Doc. No. 1 at 52,

15 53, 55).

16 In the instant petition, Wilson raises four grounds for relief challenging the state courts’

17 denial of his state habeas petition. (See generally Doc. No. 1). Specifically, Wilson contends

18 that: (1) his state habeas petition was not procedurally barred because his claim rested on a new

19 law; (2) the California legislature intended the new sentencing law to be retroactive, even to final

20 convictions; (3) the state habeas court had discretion under “any other law” to strike his sentence

21 enhancement; and (4) the state law requirement for a certificate of probable cause was not

22 required to litigate his state habeas claim. (Id. at 5-10).

23 The Court ordered Wilson to show cause why his petition filed six years after his state

24 conviction was final is not untimely. (Doc. No. 5). In response, Wilson argues that

25 § 2244(d)(1)(D) is the triggering event for the purpose of starting AEDPA’s clock because the

26 factual predicate of his claim did not occur until the California Legislature changed the law.

27 (Doc. No. 12 at 1). Wilson asserts he exercised diligence by immediately filing a state habeas

28 petition to seek relief under the new law. (Id. at 4). Thus, he argues the federal one-year

1 limitations period should run from September 18, 2019, the date the California Supreme Court

2 denied his state habeas petition resulting in federal petition being timely. (Id. at 3). In addition to

3 his argument that the facts underlying his petition warrant application of § 2244(d)(1)(D) as the

4 correct trigger, Wilson suggests the denial by the California Supreme Court to resentence him

5 under the new law also resets the AEDPA clock. (Doc. No. 12 at 4).

6 II. APPLICABLE LAW AND ANALYSIS

7 a. The Petition is Time Barred Under AEDPA’s Statute of Limitations

8 The court may raise the statute of limitations sua sponte when reviewing a habeas petition.

9 Id. at 209; Herbst v. Cook, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001) (in the interests of judicial

10 efficiency, federal district courts may consider the timeliness of a state prisoner’s habeas

11 petition). Title 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty

12 Act of 1996, sets a one-year period of limitations to the filing of a habeas petition by a person in

13 state custody. This limitation period runs from the latest of:

14 (A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

15 review;

16 (B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of

17 the United States is removed, if the applicant was prevented from

filing by such State action;

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(C) the date on which the constitutional right asserted was initially

19 recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

20 to cases on collateral review; or

21 (D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

22 diligence.

23 28 U.S.C. § 2244(d)(1). For most habeas petitioners, the one-year clock starts to run on “the date

24 on which the judgment became final by the conclusion of direct review or the expiration of the

25 time for seeking such review.” 42 U.S.C. § 2244(d)(1)(A).

26 As noted supra, Wilson argues § 2244(d)(1)(D) is the correct trigger due to the change

27 brought about by Senate Bill 620, which amended Cal. Penal Code § 12022.53. A change in

28 controlling law, however, does not constitute a “factual predicate” as that term is used within the

1 statutory framework of § 2244(d)(1)(D). Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir.

2 2005) (rejecting petitioner’s claim that subsequent California Supreme Court decision clarifying

3 state law qualified as a factual predicate for purposes of § 2244(d)(1)(D) reasoning “[i]f a change

4 in (or clarification of) state law, by a state court, in a case in which [the petitioner] was not a

5 party, could qualify as a ‘factual predicate,’ then the term ‘factual’ would be meaningless.”). See

6 also Easter v. Taylor, 714 F. App’x 791, 792 (9th Cir. 2018) (affirming the district court’s

7 rejection of petition as untimely and rejecting subsequent change in Oregon law qualified as

8 factual predicate under § 2244(d)(1)(D) citing Shannon). Thus, the California legislature’s

9 amendment to the firearms statute does not qualify as a “factual predicate” to Wilson’s case to

10 warrant tolling under § 2244(d)(1)(D).

11 To the extent Wilson suggests that the California Supreme Court’s refusal to resentence

12 him constitutes a new judgment for purposes of AEDPA’s statute of limitations, he is mistaken.

13 AEDPA’s “statute of limitations must run from the judgment pursuant to which the petitioner is

14 being held.” Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017). Here, Wilson’s judgment

15 became final in 2013. In contrast, when a state appellate court remands for resentencing,

16 AEDPA’s statute of limitations period does not begin until both the conviction and resentencing

17 claims are final on direct review. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007). Wilson’s

18 situation is different—the appellate courts did not remand his case to the lower court for

19 resentencing.

20 Because Wilson has not demonstrated that he is entitled to any tolling provisions, the

21 petition is governed by the date his “judgment became final by the conclusion of direct review or

22 the expiration of the time for seeking such review.” § 2244(d)(1)(A). Wilson does not dispute that

23 his plea-based conviction was entered on October 3, 2013 and he did not file an appeal or any post-

24 conviction motion until he filed a state habeas petition in 2018. Thus, Wilson’s federal petition

25 filed in November 2019 is untimely by five years.

26 b. The Petition Fails to State a Federal Claim

27 A federal court “shall entertain an application for a writ of habeas corpus in behalf of a

28 person in custody pursuant to the judgment of a State court only on the ground that he is in

1 custody in violation of the Constitution or laws or treaties of the United States.”

2 28 U.S.C. § 2254(a). To pass initial screening under Rule 4, petitioner must allege a violation of

3 “clearly established federal law”—meaning a violation of a U.S. Supreme Court holding. See

4 White v. Woodall, 572 U.S. 415, 419 (2014). “[F]ederal habeas corpus relief does not lie for

5 errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991).

6 Here, Wilson exclusively disputes the state court’s interpretation of its own state law.

7 Petitioner has not alleged any violation of a clearly established federal law. Therefore, the

8 petition fails to state a cognizable federal habeas claim.

9 III. CERTIFICATE OF APPEALABILITY

10 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to

11 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36

12 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2);

13 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a

14 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule

15 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court

16 denies habeas relief on procedural grounds without reaching the merits of the underlying

17 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason

18 would find it debatable whether the petition states a valid claim of the denial of a constitutional

19 right and that jurists of reason would find it debatable whether the district court was correct in its

20 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar

21 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist

22 could not conclude either that the district court erred in dismissing the petition or that the

23 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the

24 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The

25 undersigned therefore recommends that a certificate of appealability not issue.

26 Accordingly, it is ORDERED:

27 The clerk of court is directed to assign this case to a district judge.

28 Further, it is RECOMMENDED:

1 1. The petition (Doc. No. 1) be DISMISSED with prejudice.

2 2. Petitioner be denied a certificate of appealability.

3 NOTICE TO PARTIES

4 These findings and recommendations will be submitted to the United States District Judge

5 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one

6 | (21) days after being served with these findings and recommendations, a party may file written

7 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

8 | Findings and Recommendations.” Parties are advised that failure to file objections within the

9 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

10 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

pated: June 1, 2021 Me Bore Zaskth

14 HELENA M. BARCH-KUCHTA

15 UNITED STATES MAGISTRATE JUDGE

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