Thomas v. Diaz

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BRUCE THOMAS, Case No.: 19cv1632-H (BLM)

12 Petitioner,

ORDER DENYING PETITION FOR A

13 v.

WRIT OF HABEAS CORPUS AND

14 ADOLFO GONZALES, Chief Probation DENYING A CERTIFICATE OF

Officer of San Diego County, APPEALABILITY

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Respondent.

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17 Bruce Thomas (“Petitioner”) is a state probationer proceeding pro se and in forma

18 pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc.

19 No. 1.) Petitioner was sentenced to 180 days in custody and three years of probation

20 following a 2017 San Diego County Superior Court conviction for contempt of court for

21 violating a criminal protective order imposed as a condition of probation following a 2014

22 conviction for resisting arrest. (Id. at 1.) He claims a condition of his current probation

23 prohibiting him from coming within 100 yards of the victims and their property, who live

24 in a duplex next to his elderly mother, prevents him from living in his mother’s home,

25 which he will inherit via a living trust through which he holds a property interest, and

26 therefore violates his federal constitutional rights to due process, to liberty to travel to her

27 home, to his property interest therein, to peacefully assemble and be secure there, and to

28 the privileges and immunities of United States citizenship. (Id. at 5-10.)

1 Adolfo Gonzales, the Chief Probation Officer of San Diego County (“Respondent”)

2 has filed an Answer and lodged the state court record. (Doc. Nos. 5, 15, 16.) Respondent

3 argues habeas relief is unavailable because the Petition is untimely, and, alternately,

4 because the state court adjudication of Petitioner’s claims is neither contrary to, nor

5 involves an unreasonable application of, clearly established federal law, nor based on an

6 unreasonable determination of the facts. (Doc. No. 15-1 at 8-18.)

7 Petitioner has filed a Traverse with an attached Notice of Lodgment. (Doc. No. 17.)

8 He argues his Petition is timely even if it requires equitable tolling of the statute of

9 limitations. (Id. at 9-10.) He also argues he has shown by clear and convincing evidence

10 that the state court denial of his claims is based on an unreasonable determination of the

11 facts and is inconsistent with clearly established federal law. (Id. at 10.)

12 For the following reasons, the Court DENIES the Petition for a Writ of Habeas

13 Corpus and DENIES a certificate of appealability.1

14 I. STATE PROCEDURAL AND FACTUAL BACKGROUND

15 The following background is taken from the opinion of the Appellate Division of the

16 Superior Court. (Doc. No. 5-1, Lodgment No. 1.) “Factual determinations by state courts

17 are presumed to be correct absent clear and convincing evidence to the contrary.” Miller-

18 El v. Cockrell, 537 U.S. 322, 340 (2003).

19 Petitioner’s mother, Betty Thomas, 86-years old at the time of trial, lives in a duplex

20 which shares a common wall with the home of Florence Weiss, 91 years of age at the time

21 of trial. (Doc. No. 5-1, Lodgment No. 1 at 2-5.) The two women were best friends for

22 over 20 years until Petitioner and his wife moved in with his mother in 2013 as her

23 caretaker. (Id. at 3.) Florence Weiss obtained a civil restraining order in 2013 requiring

24 Petitioner to stay 2 yards away from her and her property. (Id.)

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1 Although this case was randomly referred to United States Magistrate Barbara L.

27 Major pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report

and Recommendation nor oral argument are necessary for the disposition of this matter.

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1 Petitioner was arrested for violating the civil restraining order and for resisting arrest

2 in 2014. (Id.) He was found not guilty of violating the civil restraining order but guilty of

3 resisting arrest. (Id.) As a condition of his probation for that conviction, a criminal

4 protective order was entered requiring him to stay 2 yards away from Florence Weiss, her

5 property, and her daughter Carole Ursetti. (Id.) However, Petitioner “blamed them for his

6 arrest and continued and escalated his vendetta against them, resulting in Mrs. Weiss

7 installing security cameras on her property.” (Id.)

8 On September 1, 2016, Petitioner observed Carole Ursetti moving a potted plant to

9 the side of the Weiss home. (Id. at 2.) Petitioner entered Florence Weiss’s property, chased

10 her and yelled at Carole Ursetti, all of which was captured by the security cameras. (Id.)

11 Petitioner admitted to police he had not been thinking straight in entering the Weiss

12 property, and was convicted on June 20, 2017, following a bench trial, of violating

13 California Penal Code § 166(a)(4), contempt of court for violating the criminal protective

14 order. (Id.)

15 On June 22, 2017, a sentencing hearing was held at which Betty Thomas stated

16 Petitioner will inherit her home upon her passing and the problems lie with Florence Weiss

17 and her daughter, although defense counsel admitted Petitioner has anger management

18 issues. (Id.) The trial judge invited counsel to address whether the distance in the criminal

19 protective order should be increased from 2 yards to 100 yards, and defense counsel argued

20 a 100-yard stay away order would preclude Petitioner from living with his mother and was

21 unconstitutionally vague, overbroad and interfered with his property rights. (Id.) Petitioner

22 was sentenced to 180 days in custody and a 3-year term of probation, which included a

23 100-yard stay away order. (Doc. No. 1 at 1.) In extending the distance in the stay away

24 order from 2 to 100 yards, the trial judge stated:

25 There is nothing vague about staying 100 yards away from Ms. Weiss, Ms.

Ursetti, their home, their cars, their property. There is nothing vague about

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that. (¶) There is - there is nothing unconstitutional about it, because I’ve

27 heard in this case that Mr. Thomas and his wife have another residence, that

they moved from that residence into Ms. Thomas’, his mother’s home to assist

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1 mother’s home. . . . The fact that he may inherit the property at some point in

the future that - requiring him to stay 100 yards away from these women,

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M[s]. Weiss and M[s]. Ursetti, does not violate any of his constitutional rights.

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4 (Doc. No. 5-1, Lodgment No. 1 at 2, n.1.)

5 Petitioner’s counsel filed a brief in the Appellate Division of the Superior Court

6 which presented no arguable appellate issues but requested the court review the record for

7 errors pursuant to People v. Wende, 25 Cal.3d 436 (1979). (Id. at 2.) Petitioner filed a pro

8 se supplemental brief arguing, as he does here, that the 100-yard stay away order “impinged

9 on his constitutional rights, including but not limited to his property rights and freedom of

10 association with his mother.” (Id. at 2-3.) The Appellate Division of the Superior Court

11 affirmed the conviction on May 17, 2018. (Id. at 3.) A minute order filed the next day

12 stated the court had reviewed the record pursuant to Wende and had considered Petitioner’s

13 supplemental brief but found no arguable appellate issues. (Doc. No. 16-2, Lodgment No.

14 5 at 1.) Petitioner did not file a petition to transfer his case to the Court of Appeal. As set

15 forth below, Respondent contends the conviction became final for purposes of the one-year

16 statute of limitations upon expiration of the time to seek review in the Court of Appeal.

17 On August 16, 2017, while his appeal was pending, Petitioner, through counsel, filed

18 a motion to modify his probation to reduce the stay away distance from 100 yards to 2

19 yards in order to permit him to move back into his mother’s home upon his release from

20 custody. (Doc. No. 5-1, Lodgment No. 1 at 3.) On September 22, 2017, the court heard

21 from Florence Weiss, Carole Ursetti, Betty Thomas and Petitioner’s wife. (Id.) In denying

22 the motion, the judge noted that Petitioner had harassed and intimidated Florence Weiss,

23 had been given a “fair chance” with the 2-yard stay away order but violated it, and was

24 seen on the security video “chasing after a 90-year old woman when there’s a court order

25 requiring him to stay two yards away from her.” (Id. at 3, 4 n.3.)

26 About a year later, on September 17, 2018, after his conviction was affirmed on

27 appeal, Petitioner, while represented by the office of the public defender, filed a second

28 motion to modify the 100-yard stay away order to 2 yards, contending he had been law-

1 abiding and intended to obey the stay away order, the court could revoke his probation if

2 he violated a 2-yard stay away order, and circumstances had changed in that his mother

3 had been released from the hospital and was spending significant amounts of money on

4 home health care Petitioner could be providing and Petitioner needed access to her home

5 to conduct his home business. (Id. at 4.) The San Diego District Attorney filed an

6 opposition to the motion contending there had been no change in circumstances warranting

7 modification of the probation conditions. (Doc. No. 16-1, Lodgment No. 4.)

8 A hearing was held on October 12, 2018, at which Petitioner testified he moved into

9 his mother’s home in April 2013 to care for her when she needed help, that prior to that he

10 and his wife lived in an apartment and she threatened to divorce him if they did not move

11 into his mother’s “nice house,” that he runs a home-based business and cannot afford to

12 live elsewhere, and that he has been diagnosed with intermittent explosive behavior

13 disorder which causes him to lose jobs for which he collects social security disability

14 payments. (Doc. No. 5-1, Lodgment No. 1 at 4-5.) In denying the motion, the trial court

15 noted it “did not believe the defendant ‘has insight yet as to how his conduct affects others

16 . . . he blames everyone around him for his circumstances.’” (Id. at 5.) The court stated:

17 So as I mentioned at the outset, this is a motion that requires a balancing of

competing interests, and Mr. Thomas has raised and does raise some

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legitimate and reasonable points. Those have to be balanced against the points

19 that were made by the People in their opposition and, in particular, the input

of the victims, which I have as I mentioned, I’ve heard from them at least

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twice. And balancing all those factors, I will deny today’s request to modify

21 probation.

22 (Id. at 5.)

23 Petitioner appealed the denial of that motion to modify the stay away order, and on

24 May 7, 2019, the Appellate Division of the Superior Court affirmed, stating:

25 First, we note that the instant criminal protective order (CPO) at issue,

which ordered the defendant to stay 100 yards away from the protected

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persons and their property, was issued on June 22, 2017, the date of sentencing

27 in this case. The constitutional argument was made at the sentencing hearing

that the CPO would preclude the defendant from living in his residence, his

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1 argument was presented again in the defendant’s supplemental appellate brief

after his appointed counsel filed a People v. Wende brief, in the first appeal in

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this case. This court reviewed the entire record on appeal and the defendant’s

3 supplemental brief; we affirmed the judgment of conviction, which included

the CPO. As such, the renewed challenge to the originally imposed CPO on

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constitutional grounds is untimely in this second appeal in the same case, and

5 the Appellate Division’s prior decision is final and not subject to

reconsideration or further appeal.

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7 Penal Code section 1203.3 gives the trial court authority to modify the

terms of probation during the probations period. “A change in circumstances

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is required before a court has jurisdiction to . . . modify probation.” (People

9 v. Cookson (1991) 54 Cal.3d 1091, 1095.) This was the second time the

defendant had sought a modification of the CPO and had a hearing on the

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issue, and been denied a modification of the CPO from 100-yards away from

11 the victims to 2-yards away from the victims and their property. The trial

court relied on its recollection of the trial evidence and statements taken at

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subsequent hearings and its review of the separate 2014 criminal matter that

13 initially led to the imposition of a first CPO and the basis for the underlying

charge in this case. The court noted that the defendant’s interest in his

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residence had not changed; he was an invited guest in his mother’s home and

15 had no ownership rights in the property. The court weighed the competing

interests of the parties, the defendant’s history of harassment and intimidation

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of the victims, its belief that the defendant had no insight into his conduct, and

17 denied the defendant’s motion to modify the CPO by reducing the stay away

order from 100-yards to 2-yards.

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19 The standard of review applicable to the trial court’s denial of

appellant’s motion to modify his probation is abuse of discretion. (People v.

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Leal (2012) 210 Cal.App.4th 829.) The standard of review is highly

21 deferential and the sentencing court abuses its discretion only when its

determination is arbitrary or capricious or exceeds the bounds of reason under

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a totality of the circumstances. (Id. at p. 843.)

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We find no error with the trial court’s ruling, and the denial of the

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motion to modify the CPO is affirmed.

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26 (Id. at 5-6.)

27 On July 24, 2019, Petitioner, through counsel, filed a petition for a transfer to the

28 Court of Appeal in order to appeal that decision. (Doc. No. 5-2, Lodgment No. 2.)

1 Petitioner argued in the petition for transfer that the Appellate Division had erred in relying

2 on the record of his initial appeal of his conviction and in failing to consider his

3 constitutional arguments because he was appealing the denial of his motion to modify his

4 probation, not his conviction and sentence. (Id. at 7.) On August 8, 2019, the Court of

5 Appeal denied the petition, stating: “The petition for transfer has been read and considered

6 by Justices Huffman, O’Rourke and Irion. The petition is denied.” (Doc. No. 5-3,

7 Lodgment No. 3 at 1.) As set forth below, Petitioner argues the one-year statute of

8 limitations was triggered by that order because that is what he is challenging here, and,

9 alternately, that he is entitled to equitable tolling for a delay in filing that petition to transfer

10 caused by circumstances outside his control.

11 II. PETITIONER’S CLAIMS

12 (1) Petitioner’s right to peaceably assemble in his house and to be secure therein to

13 live with his wife and take care of his aging mother as protected by the First Amendment

14 to the United States Constitution was violated by the 100-yard stay away order because it

15 exceeded the trial court’s discretion to balance the interests of the parties where there was

16 no violence by Petitioner toward the protected parties and the trial judge stated “we almost

17 always issue 100 yard stay away orders.” (ECF No. 1 at 5.)

18 (2) Petitioner was deprived of his liberty and property without due process of law

19 in violation of the Fifth and Fourteenth Amendments to the United States Constitution by

20 the 100-yard stay away order because he is being forced to find alternative living

21 arrangements from a house he lived in for 20 years and will inherit by way of a living trust

22 without affordable housing alternatives except motel rooms and homeless shelters, and was

23 deprived of due process of law by the Court of Appeal’s denial of his petition to transfer

24 his case from the Appellate Division of the Superior Court. (Id. at 7.)

25 (3) Petitioner was deprived of his liberty to travel to his mother’s house without due

26 process of law in violation of the Fourteenth Amendment to the United States Constitution

27 by the 100-yard stay away order which prohibits him from living with or near his aging

28 parent and taking care of her. (Id. at 8.)

1 (4) Petitioner was denied the privileges and immunities of United States citizenship

2 without due process of law in violation of the United States Constitution by the order

3 requiring him to stay 100 yards away from his home.2 (Id. at 10.)

4 III. DISCUSSION

5 A. Timeliness

6 A one-year statute of limitations applicable to federal habeas petitions pursuant to

7 28 U.S.C. § 2254 begins to run at the latest of—

8 (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;

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10 (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

11

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

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

14 the Supreme Court and made retroactively applicable to cases on collateral

review; or

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

presented could have been discovered through the exercise of due diligence.

17

18 28 U.S.C. § 2244(d)(1)(A)-(D).

19 Respondent correctly contends, and Petitioner does not dispute, there is support in

20 the record only for § 2244(d)(1)(A) to provide the triggering date for the one-year statute

21 of limitations, which began to run when Petitioner’s conviction “became final by the

22 conclusion of direct review or the expiration of the time for seeking such review.” (Doc.

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2 The claims are identified, enumerated and addressed in this Order based on a liberal

25 construction of the pro se federal Petition. See Eldridge v. Block, 832 F.2d 1132, 1137

(9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe

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the ‘inartful pleading’ of pro se litigants.”), quoting Boag v. MacDougall, 454 U.S. 364,

27 365 (1982); see also Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (holding that

liberal construction of pro se prisoner habeas petitions is especially important with regard

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1 No. 15-1 at 11; Doc. No. 17 at 9.) Respondent argues that date is 30 days after the Appellate

2 Division’s May 18, 2018 order affirming the conviction, which was the deadline for the

3 Court of Appeal to transfer the case to itself on its own motion since Petitioner did not file

4 a petition for transfer. (Doc. No. 15-1 at 11.) Petitioner argues that date is August 8, 2019,

5 when the Court of Appeal denied the appeal of his motion to modify the terms of his

6 probation because that is what he is challenging here. (Doc. No. 17 at 7.)

7 The Ninth Circuit has held that a California misdemeanor conviction becomes final

8 immediately upon the denial of a petition for transfer by the state appellate court.

9 McMonagle v. Meyer, 802 F.3d 1093, 1096-97 (9th Cir. 2015) (en banc). Because a

10 misdemeanant may not appeal to the California Supreme Court where the petition to

11 transfer has been denied, “the conclusion of direct review or the expiration of the time for

12 seeking such review” within the meaning of § 2244(d)(1)(A) is the date the United States

13 Supreme Court denied certiorari or the expiration of the 90-day deadline for filing a petition

14 for certiorari following the denial of the petition for transfer. Id. at 1097. Unlike the

15 petitioner in McMonagle, however, Petitioner here did not file a petition for transfer to the

16 Court of Appeal in his original direct appeal of his conviction and sentence from the

17 affirmance by the Appellate Division of the Superior Court but allowed the time to do so

18 to expire. As Respondent correctly observes, the Court of Appeal has 30 days in which to

19 transfer appellate jurisdiction to itself on its own motion, see Cal.R.Ct. 8.1008(a)(1)(B)

20 (“The Court of Appeal may order transfer . . . [o]n its own motion, within 30 days after the

21 appellate division decision is final in that court.”), but only if transfer would “secure

22 uniformity [of decision] or [to] settle an important question of law.” Cal.R.Ct. 8.1002.

23 When a petitioner fails to seek review in the state appellate court, however, the conviction

24 is final upon the expiration for doing so, and Respondent provides no support for finding

25 it is when the time expires for the state court to transfer the case to itself on its own motion.

26 See Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010) (holding that the one-year

27 statute of limitations in § 2244(d)(1)(A) begins to run for a California prisoner upon the

28 expiration for seeking review in the state appellate court).

1 The Appellate Division’s order is dated May 17, 2018, but it is file-stamped the next

2 day, May 18, 2019. (Doc. No. 16-2 at 1.) Petitioner had 15 days from the date of that

3 order to file a petition to transfer the appeal to the Court of Appeal. Cal.R.Ct. 8.1006(b)(1)

4 (“The petition must be served and filed in the Court of Appeal after the appellate division

5 issues its decision in the case but no later than 15 days after the decision in final in that

6 court.”); but see Cal.R.Ct. 8.1006(b)(2) (“The time to file a petition for transfer may not be

7 extended, but the presiding justice may relieve a party from a failure to file a timely petition

8 for transfer if the time for the Court of Appeal to order transfer on its own motion has not

9 expired.”) Because 15 days after May 18, 2018 fell on a Saturday, the conviction became

10 final under state law at the latest on Monday, June 4, 2018. Cal.Code Civ.Proc., § 12a(a).

11 The instant federal Petition was filed on August 29, 2019, one year and 86 days later. As

12 will be seen, whether the conviction became final 15 days after May 17, 2018 when the

13 Appellate Division’s order is dated, or its May 18, 2018 filing date, or 30 days thereafter

14 as Respondent contends, is not dispositive. Rather, if the expiration of time for seeking

15 direct review of the conviction includes an additional 90 days to seek certiorari in the

16 United States Supreme Court the Petition is timely, and if not, it is untimely.

17 In Gonzalez v. Thaler, 565 U.S. 134 (2012), the petitioner appealed his conviction

18 to an intermediate appellate court but did not seek discretionary review in the state’s

19 highest court of criminal appeals. Id. at 138. The Supreme Court declined to allow

20 petitioner the benefit of the 90-day period to seek certiorari with respect to the triggering

21 date under § 2244(d)(1)(A) because it would have lacked jurisdiction over a petition for

22 certiorari from the lower state court, noting that “[w]e can review, however, only

23 judgments of a ‘state court of last resort’ or of a lower state court if the ‘state court of last

24 resort’ has denied discretionary review.” Id. at 150-54, citing Sup.R.Ct. 13.1. Because

25 Petitioner did not petition the Court of Appeal for transfer of the Appellate Division’s May

26 18, 2018 order affirming his conviction and sentence, the United States Supreme Court

27 lacked jurisdiction to consider a petition for certiorari from the Appellate Division of the

28 Superior Court, and the time for seeking direct review of the conviction under

1 § 2244(d)(1)(A) expired on the last day Petitioner could have filed a petition to transfer his

2 case to the Court of Appeal, at the latest on June 4, 2018. Gonzalez, 565 U.S. at 154;

3 Roberts, 627 F.3d at 771; McMonagle, 802 F.3d at 1097.

4 The one-year limitations period began to run the next day, June 5, 2018. See

5 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (holding that “in computing any

6 period of time prescribed or allowed by . . . any applicable statute, the day of the act, event,

7 or default from the designated period of time begins to run shall not be included.”) Absent

8 tolling of the limitations period, Petitioner had one full year, until June 4, 2019, to timely

9 file a federal habeas petition. The instant federal petition was filed 86 days later, on August

10 29, 2019. The Petition is timely under that scenario only if the limitations period was tolled

11 for at least 86 days.

12 Although unclear, Petitioner appears to imply that the limitations period began to

13 run after his second appeal was denied on August 8, 2019, in which he appealed the denial

14 of his motion to modify his probation and raised the constitutional claims he presents here,

15 because that is the decision he is challenging in his federal habeas Petition. (Doc. No. 17

16 at 7.) However, as set forth above, the state court in that second appeal refused to address

17 his constitutional claims, stating: “This court reviewed the entire record on appeal and the

18 defendant’s supplemental brief; we affirmed the judgment of conviction, which included

19 the CPO. As such, the renewed challenge to the originally imposed CPO on constitutional

20 grounds is untimely in this second appeal in the same case, and the Appellate Division’s

21 prior decision is final and not subject to reconsideration or further appeal.” (Doc. No. 5-1,

22 Lodgment No. 1 at 5.) There is no basis to find that the one-year statute of limitations

23 began to run at the conclusion of that second appeal because the constitutional claims in

24 the instant federal Petition were not properly raised or addressed by the state court and

25 were found to be untimely. See Randel v. Crawford, 604 F.3d 1047, 1056-57 (9th Cir.

26 2010) (holding that a state court denial as untimely of a request to reopen direct appeal did

27 not restart the statute of limitations). If a new or modified judgment of conviction had been

28 entered as a result of the denial of the motion to modify the terms of probation it could

1 have restarted the limitations period. See Gonzalez v. Sherman, 873 F.3d 763, 769 (9th

2 Cir. 2017) (holding that under California law an amended judgment awarding a defendant

3 credit for time served constitutes a new judgment restarting the statute of limitations).

4 However, there is no indication in the record that happened here, as Petitioner’s motion to

5 modify his sentence was denied and the conditions of his probation were not altered. See

6 Smith v. Williams, 871 F.3d 684, 688 (9th Cir. 2017) (holding that an amended judgment

7 of conviction is considered a “new judgment, starting a new one-year statute of

8 limitations,” provided it constitutes the judgment of conviction under which the petitioner

9 is being held); Gonzalez, 873 F.3d at 772 (recognizing that although the correction of a

10 typographical or scrivener’s error alone is insufficient to restart the statute of limitations

11 because the judgment itself is not changed, only its erroneous written record, an amended

12 judgment altering the number of presentence credits to which petitioner was entitled

13 restarted statute of limitations); Redd v. McGrath, 343 F.3d 1077, 1081-83 (9th Cir. 2003)

14 (holding that traditional rules of claim accrual apply to habeas proceedings). Thus, the

15 Petition can only be timely if the statute of limitations was tolled for at least 86 days.

16 The one-year statute of limitations is subject to statutory tolling. See 28 U.S.C.

17 § 2244(d)(2) (providing that the statute of limitations is tolled while a “properly filed

18 application for State post-conviction or other collateral review with respect to the pertinent

19 judgment or claim is pending” in state court.) That provision does not apply here because

20 Petitioner made no collateral attacks on his conviction. Even if his appeal of the motion to

21 modify the parole conditions could be considered a collateral attack within the meaning of

22 § 2244(d)(2), the state court found the constitutional claims untimely, and it is therefore

23 categorically excluded from statutorily tolling of the limitations period. See Pace v.

24 DiGuglielmo, 544 U.S. 408, 414 (2005) (“What we intimated in Saffold we now hold:

25 When a postconviction petition is untimely under state law, ‘that (is) the end of the matter’

26 for purposes of § 2244(d)(2).”), quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)

27 (holding that an untimely state petition does not statutorily toll the limitations period).

28 / / /

1 The statute of limitations “is subject to equitable tolling in appropriate cases.”

2 Holland v. Florida, 560 U.S. 631, 645 (2010). Petitioner “is ‘entitled to equitable tolling’

3 only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some

4 extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649,

5 quoting Pace, 544 U.S. at 418.

6 Petitioner states that on or about May 14, 2019, after the Appellate Division of the

7 Superior Court denied his second appeal on May 7, 2019, he “requested his public appeal

8 counsel to transfer his appeal to the Court of Appeal. Counsel informed Petitioner after

9 [the] Appellate Division ruling that he could no longer be represented by public counsel.”

10 (Doc. No. 17 at 9.) Petitioner states he improperly filed such a petition himself on May 21,

11 2019, but it was rejected because he was represented by counsel. (Id.) After he informed

12 his counsel of those events, counsel filed the petition to transfer on May 29, 2019. (Id.)

13 The Court of Appeal denied the petition for transfer on August 8, 2019, and Petitioner filed

14 the instant federal Petition on August 29, 2019. He contends he is entitled to 51 days of

15 equitable tolling for the delay caused by those events. (Id.)

16 As set forth above, Petitioner needs tolling for at least 86 days after the limitations

17 period began to run on June 5, 2018 and before he filed the instant Petition on August 29,

18 2019. The delay he identifies, May 14-29, 2019, represents only 15 days. In any case, the

19 events he contends tolled the limitations period involve his appeal of the denial of his

20 motion to modify the conditions of his probation, not the appeal of his conviction and

21 sentence. As set forth above, that second appeal is not relevant to the calculation of the

22 statute of limitations. Rather, it appears Petitioner contends he thought he had to wait to

23 file his federal habeas Petition until the state appellate court ruled on his petition to transfer

24 the appeal of his motion to modify the conditions of his probation. That is not an

25 “extraordinary circumstance” which prevented him from timely filing his federal Petition.

26 Holland, 560 U.S. at 649; see Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)

27 (holding that petitioner’s lack of legal sophistication or inability to calculate the statute of

28 limitations is not an extraordinary circumstance warranting equitable tolling).

1 Accordingly, the Petition for a Writ of Habeas Corpus was filed after expiration of

2 the one-year statute of limitations and is DENIED as untimely pursuant to 28 U.S.C.

3 § 2244(d).

4 B. Merits

5 Alternately, the Petition fails on the merits. In order to obtain federal habeas relief

6 with respect to a claim which was adjudicated on the merits in state court a federal habeas

7 petitioner must demonstrate that the state court adjudication of the claim: “(1) resulted in

8 a decision that was contrary to, or involved an unreasonable application of, clearly

9 established Federal law, as determined by the Supreme Court of the United States; or (2)

10 resulted in a decision that was based on an unreasonable determination of the facts in light

11 of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

12 A state court’s decision may be “contrary to” clearly established Supreme Court

13 precedent (1) “if the state court applies a rule that contradicts the governing law set forth

14 in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially

15 indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

16 from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state

17 court decision may involve an “unreasonable application” of clearly established federal

18 law, “if the state court identifies the correct governing legal rule from this Court’s cases

19 but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407.

20 To satisfy § 2254(d)(2), a petitioner must show the factual findings relied upon by the state

21 court are objectively unreasonable. Miller-El, 537 U.S. at 340.

22 Petitioner’s original appeal of his conviction and sentence was denied by the

23 Appellate Division of the Superior Court in a minute order with a box checked that the

24 judgment of conviction was affirmed unanimously, and stating:

25 Following a review of the entire record pursuant to People v. Wende, and

consideration of the supplemental brief, the Appellate Division finds no

26

arguable issues.

27

Appellant’s appointed counsel Joyce Sweet filed a written waiver of oral

28

1 Earlier today, the Appellate Division issued an Order denying Appellant’s

request to augment the record, and his request to continue oral argument and

2

for the appointment of another appellate counsel.

3

The Presiding Judge, the Honorable Charles R. Gill placed all of this orally

4

on the record, and the appellant was present in Court and got up and exited

5 the courtroom as the judge was making this record.

6 (Doc. No. 16-2, Lodgment No. 5 at 2.)

7 Thus, Petitioner’s constitutional claims were summarily denied by the appellate

8 division of the superior court on direct appeal of his conviction and sentence, and he did

9 not appeal further. The lower court, the trial court, had previously summarily denied the

10 claims, stating: “The fact that he may inherit the property at some point in the future that -

11 requiring him to stay 100 yards away from these women, M[s]. Weiss and M[s]. Ursetti,

12 does not violate any of his constitutional rights.” (Doc. No. 5-1, Lodgment No. 1 at 2 n.1.)

13 As noted above, the Appellate Division of the Superior Court, in denying Petitioner’s

14 appeal from the denial of his motion to modify the conditions of his probation, refused to

15 revisit its denial of the constitutional claims it had rejected in the original appeal. In

16 applying the provisions of 28 U.S.C. § 2254(d) to a summary denial, the Court “must

17 determine what arguments or theories . . . could have supported the state court’s decision;

18 and then it must ask whether it is possible fairminded jurists could disagree that those

19 arguments or theories are inconsistent with the holding in a prior decision of [the United

20 States Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

21 1. Claim One

22 Petitioner alleges in claim one that his right to peaceably assemble in his mother’s

23 house and to be secure therein to live with his wife and take care of his aging mother as

24 protected by the First Amendment to the United States Constitution, was violated by the

25 imposition of a 100-yard stay away order because it exceeded the trial judge’s discretion

26 in balancing the interests of the parties because there was no violence by Petitioner toward

27 the protected parties and the trial judge stated “we almost always issue 100 yard stay away

28 orders.” (Doc. No. 1 at 5.) Respondent answers Petitioner is unable to show that the state

1 court adjudication of any claim presented is contrary to, or an unreasonable application of,

2 clearly established federal law because Petitioner has identified no clearly established

3 United States Supreme Court authority controlling his claims. (Doc. No. 15-1 at 14-18.)

4 Petitioner replies that he raised different constitutional claims in his appeal of the denial of

5 his motion to modify his probation than he did on direct appeal, and the Appellate

6 Division’s determination that the claims were the same and its refusal to address them in

7 his second appeal amounts to an unreasonable determination of the facts under 28 U.S.C.

8 § 2254(d)(2), and that court’s disregard of the clearly established federal law he cited in

9 support of his claims is unreasonable under 28 U.S.C. § 2254(d)(1). (Doc. No. 17 at 10.)

10 The Supreme Court has held that the First Amendment protection of freedom of

11 association includes intimate human relationships, stating:

12 Our decisions have referred to constitutionally protected “freedom of

association” in two distinct senses. In one line of decisions, the Court has

13

concluded that choices to enter into and maintain certain intimate human

14 relationships must be secured against undue intrusions by the State because

of the role of such relationships in safeguarding the individual freedom that is

15

central to our constitutional scheme. In this respect, freedom of association

16 receives protection as a fundamental element of personal liberty. In another

set of decisions, the Court has recognized a right to associate for the purposes

17

of engaging in those activities protected by the First Amendment - speech,

18 assembly, petition for the redress of grievances, and the exercise of religion.

The Constitution guarantees freedom of association of this kind as an

19

indispensable means of preserving other individual liberties.

20

21 Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).

22 The Supreme Court has recognized that “cohabitation with one’s relatives” is

23 included in those intimate relationships, and that “[f]amily relationships, by their nature,

24 involve deep attachments and commitments to the necessarily few other individuals with

25 whom one shares not only a special community of thoughts, experiences, and beliefs, but

26 also distinctively personal aspects of one’s life.” Id. at 619-20. Nevertheless, Petitioner’s

27 First Amendment rights are subject to reasonable, narrowly-tailored restrictions. Ward v.

28 Rock Against Racism, 491 U.S. 781, 791 (1989); see also Griffin v. Wisconsin, 483 U.S.

1 868, 875 (1987) (noting that probation conditions are permissible when they “assure that

2 the probation serves as a period of genuine rehabilitation and that the community is not

3 harmed by the probationer’s being at large.”) When “fundamental rights” are affected,

4 “[t]he test for validity of probation conditions . . . is whether the conditions are primarily

5 designed to meet the ends of rehabilitation and protection of the public.” United States v.

6 Terrigno, 838 F.2d 371, 374 (9th Cir. 1988), citing United States v. Lowe, 654 F.2d 562,

7 567 (9th Cir. 1981).

8 The state court could have reasonably denied Petitioner’s First Amendment claim

9 on the basis that the 100-yard stay away order was necessary to protect the victims and to

10 prevent a repeat of a violation of the original 2-yard stay away order. The 100-yard stay

11 away order was imposed following a criminal conviction arising from a violation of a

12 criminal protective order to stay 2-yards away from the victims, which in turn was imposed

13 as a result of a criminal conviction for resisting arrest arising from a complaint of a

14 violation of an initial civil 2-yard stay away protective order. The record contains findings

15 that Petitioner harassed and intimidated the victims, that he was given a fair chance to live

16 in his mother’s house by the imposition of the 2-yard stay away order which he violated

17 when he was seen on security camera footage chasing an elderly woman over an unjustified

18 and insignificant dispute over the placement of a potted plant, that he has anger

19 management issues and intermittent explosive behavior disorder, lacks insight into “how

20 his conduct affects others [and] he blames everyone around him for his circumstances,”

21 and “has demonstrated by his own behavior in the past that he won’t abide by a two-yard

22 restraining order.” (Doc. No. 5-1, Lodgment No. 1 at 2-5.) His contentions that the 100-

23 yard stay away order is unreasonable because his actions did not involve violence, and that

24 a 2-yard stay away order will sufficiently protect the victims, do not support a finding that

25 the parole condition is not narrowly drawn. See Terrigno, 838 F.2d at 374 (holding that

26 probation conditions are narrowly drawn when they “protect the public from a situation

27 that might lead to a repetition of the same crime.”) Because the restriction on his right to

28 association is justified by the record and is narrowly tailored to serve important government

1 interests in protecting the victims from a repeat of the crime for which Petitioner was

2 convicted, the state court adjudication is neither contrary to, nor an unreasonable

3 application of, clearly established federal law. Ward, 491 U.S. at 791; Griffin, 483 U.S. at

4 874; Terrigno, 838 F.2d at 374 (holding that when fundamental rights are affected, “[t]he

5 test for validity of probation conditions is whether the conditions are primarily designed to

6 meet the ends of rehabilitation and protection of the public.”)

7 Neither is Petitioner entitled to federal habeas relief on the basis that the state court

8 adjudication of claim one is based on an unreasonable determination of the facts. As set

9 forth above, the reasonableness of the 100-yard stay away order has ample factual support

10 in the state court record, and Petitioner has made no showing that those factual findings are

11 unreasonable. See Miller-El, 537 U.S. at 340 (holding that the factual findings relied upon

12 by the state court must be objectively unreasonable to satisfy 28 U.S.C. § 2254(d)(2).)

13 Even assuming Petitioner is correct that the state court erroneously found he raised the

14 same constitutional claims in his original appeal as in his motion to modify the conditions

15 of his probation, and erroneously refused to address the constitutional claims raised in his

16 second appeal and presented here, and assuming 28 U.S.C. § 2254(d)(2) can be satisfied

17 on that basis, he must still show that a federal constitutional violation occurred in order to

18 obtain federal habeas relief. Fry v. Pliler, 551 U.S. 112, 119-22 (2007).

19 When a federal habeas court addresses a claim which has not been adjudicated on

20 the merits in state court or when 28 U.S.C. § 2254(d)(2) has been satisfied, de novo review

21 is required. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002). Under such a

22 review, “state court judgments of conviction and sentence carry a presumption of finality

23 and legality and may be set aside only when a state prisoner carries his burden of proving

24 that (his) detention violates the fundamental liberties of the person, safeguarded against

25 state action by the Federal Constitution.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir.

26 2005) (en banc). Were the Court to consider claim one under a de novo review, it would

27 find it fails to provide a basis for federal habeas relief for the reasons discussed above.

28 / / /

1 2. Claim Two

2 Petitioner alleges in claim two he was deprived of liberty and property without due

3 process of law in violation of the Fifth and Fourteenth Amendments to the United States

4 Constitution by the 100-yard stay away order because he is being forced to find alternative

5 living arrangements from a house he lived in for 20 years and will inherit by way of a living

6 trust, and without which he is unable to find affordable housing except motel rooms and

7 homeless shelters. (Doc. No. 1 at 7.) He also claims in a wholly conclusory fashion that

8 he was deprived of due process by the Court of Appeal’s denial of his petition to transfer

9 his case from the Appellate Division of the Superior Court. (Id.)

10 The Due Process Clause of the Fifth Amendment, applicable to the states through

11 the Fourteenth Amendment, provides that no person may be deprived of liberty or property

12 without due process of law. Matthews v. Eldridge, 424 U.S. 319, 333-34 (1976). Due

13 process rights are flexible and depend largely on the specific factual circumstances along

14 with a weighing of the governmental and private interests involved. Id. “The requirements

15 of procedural due process apply only to the deprivations of interests encompassed by the

16 Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents of State

17 Colls. v. Roth, 408 U.S. 564, 569-70 (1972). Even to the extent Petitioner can show his

18 liberty or property interests were interfered with by the imposition of the 100-yard stay

19 away order condition of his probation, he was represented by counsel at trial and on appeal

20 and has identified no errors in those proceedings rising to the level of a due process

21 violation. In any case, this claim fails for the same reason as claim one, because any

22 restriction on his fundamental liberty or property rights arising from the 100-yard stay away

23 probation condition is reasonable and narrowly drawn. See Terrigno, 838 F.2d at 374

24 (holding that when fundamental rights are affected, “[t]he test for validity of probation

25 conditions is whether the conditions are primarily designed to meet the ends of

26 rehabilitation and protection of the public,” and that probation conditions are narrowly

27 drawn when they “protect the public from a situation that might lead to a repetition of the

28 same crime.”)

1 3. Claim Three

2 Petitioner alleges in claim three he was deprived of the liberty to travel to his

3 mother’s house without due process of law in violation of the Fourteenth Amendment to

4 the United States Constitution by the 100-yard stay away order which prohibits him from

5 living with or near his aging parent and taking care of her. (Doc. No. 1 at 8.) Freedom to

6 travel is often tied to other fundamental rights, such as free speech, free assembly and free

7 association, and is a basic right. Kent v. Dulles, 357 U.S. 116, 126 (1958) (“freedom to

8 travel is, indeed, an important aspect of the citizen’s ‘liberty.’”) This claim fails for the

9 same reason as claim one. See Terrigno, 838 F.2d at 374 (holding that when fundamental

10 rights are affected, “[t]he test for validity of probation conditions is whether the conditions

11 are primarily designed to meet the ends of rehabilitation and protection of the public,” and

12 that probation conditions are narrowly drawn when they “protect the public from a situation

13 that might lead to a repetition of the same crime.”)

14 4. Claim Four

15 Petitioner alleges in his fourth and final claim, in a wholly conclusory fashion, that

16 he was denied the privileges and immunities of United States citizenship without due

17 process of law as a result of the order requiring him to say 100 yards away from his home.

18 (Doc. No. 1 at 10.) The Privileges and Immunities Clause of Article IV of the United States

19 Constitution provides that: “The citizens of each state shall be entitled to all privileges and

20 immunities of citizens in the several states.” U.S. Const. art. IV, § 2, cl. 1. The Privileges

21 and Immunities Clause of the Fourteenth Amendment to the United States Constitution

22 provides that: “No state shall make or enforce any law which shall abridge the privileges

23 or immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1. The Supreme

24 Court has identified the “fundamental” rights protected by those clauses generally as:

25 protection by the Government; the enjoyment of life and liberty, with the right

to acquire and possess property of every kind, and to pursue and obtain

26

happiness and safety, subject nevertheless to such restraints as the

27 Government may justly prescribe for the general good of the whole. The right

of a citizen of one State to pass through or reside in any other State for the

28

1 benefit of the writ of habeas corpus; to institute and maintain actions of any

kind in the courts of the State; to take, hold, and dispose of property, either

2

real or personal; and an exemption from higher taxes or impositions than are

3 paid by the other citizens of the State, may be mentioned as some of the

particular privileges and immunities of citizens, which are clearly embraced

4

by the general description of privileges deemed to be fundamental; to which

5 may be added the elective franchise, as regulated and established by the laws

or constitution of the State in which it is to be exercised.

6

7 Blake v. McClung, 172 U.S. 239, 249 (1898).

8 Petitioner has not alleged he was deprived of any fundamental right protected by

9 those clauses not already discussed, and this claim fails for the reasons set forth above.

10 In sum, the state court adjudication of Petitioner’s claims is neither contrary to, nor

11 involves an unreasonable application of, clearly established federal law, nor based on an

12 unreasonable determination of the facts. The Court would also deny the claims under a de

13 novo review. The Petition is DENIED on that basis as an alternate to untimeliness.

14 IV. CERTIFICATE OF APPEALABILITY

15 The threshold for granting a Certificate of Appealability is “relatively low.”

16 Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). “At the COA stage, the only

17 question is whether the applicant has shown that ‘jurists of reason could disagree with the

18 district court’s resolution of his constitutional claims or that jurists could conclude the

19 issues presented are adequate to deserve encouragement to proceed further.’” Buck v.

20 Davis, 137 S.Ct. 759, 773 (2017), quoting Miller-El, 537 U.S. at 327. Petitioner has not

21 met that standard, and a Certificate of Appealability is DENIED.

22 V. CONCLUSION AND ORDER

23 Based on the foregoing, the Petition for a Writ of Habeas Corpus (ECF No. 1) is

24 DENIED. The Court DENIES a Certificate of Appealability.

25

26 DATED: April 2, 2020

27 _____________________________________

MARILYN L. HUFF, District Judge

28