# Alejandro Alve v. Gavin Newson

> District Court, S.D. California · October 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10084666

## Case

- **Court:** District Court, S.D. California
- **Decided:** October 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ALEJANDRO ALVE, Case No.: 21-cv-349-CAB-DEB

12 Petitioner,
REPORT AND
13 v. RECOMMENDATION ON
RESPONDENTS’ MOTION TO
14 GAVIN NEWSOM, et al.,
DISMISS
15 Respondents.
[DKT. NO. 15]
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18 This Report and Recommendation is submitted to United States District Judge Cathy
19 Ann Bencivengo pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1.d and HC.2.
20 I. INTRODUCTION
21 Petitioner Alejandro Alve is an inmate at Solano State Prison. On February 19, 2021,
22 he filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1.
23 The Petition alleges Alve is “unlawfully in prison via ‘Information’ rather than an
24 ‘Indictment’ by the grand jury as a condition precedent for confinement in state prison.”
25 Id. at 10.
26 On April 27, 2021, Respondents filed a Motion to Dismiss Alve’s Petition. Dkt.
27 No. 15. Respondents also lodged filings from Central District of California Case No. 99-
28 cv-09167-CAS-EE as follows: (1) a Report and Recommendation; (2) a Final Report and
1 Recommendation; and (3) an Order Accepting and Adopting Findings and
2 Recommendations. Dkt. No. 16. On May 14, 2021, Alve filed an Opposition. Dkt. No. 17.
3 Upon consideration of the Petition, Motion to Dismiss, Opposition, and supporting
4 documents, the Court Recommends GRANTING Respondents’ Motion to Dismiss.
5 II. PROCEDURAL BACKGROUND
6 The following procedural history is taken from the San Diego County Superior
7 Court’s Order Denying Petition for Writ of Habeas Corpus, which Alve attached to this
8 Petition:
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In 1976, Petitioner was convicted of two counts of first-degree
10 murder and simple assault, and was sentenced to death. His first
11 appeal resulted in reduction of the death sentence to a sentence
of life in prison, and a retrial with respect to his sanity. A second
12 jury found Petitioner sane at the time of the commission of each
13 of the offenses. That judgment was affirmed on appeal.
14 Dkt. No. 1 at 17.
15 Alve has filed at least one other federal petition for a writ of habeas corpus
16 challenging his conviction. On September 9, 1999, Alve filed a petition in the Central
17 District of California (Case No. 99-cv-09167-CAS-EE) (“1999 Federal Petition”). Dkt.
18 No. 16. The 1999 Federal Petition raised two claims: (1) he “has been punished twice in
19 violation of the constitution and [(2)] [he was] deprived of other constitutional rights” (i.e.,
20 he “cannot vote and earns less than minimum wage.”). Dkt. No. 16-2 at 4. The court ruled
21 the 1999 Federal Petition was untimely (id. at 6), and “to the extent that [Alve] may be
22 attempting to challenge conditions of confinement,” these claims were not reviewable in a
23 habeas corpus action (id. at 2). The court, therefore, dismissed the 1999 Federal Petition
24 with prejudice. Dkt. No. 16-1 at 1.
25 On July 29, 2020, Alve filed a Petition for Writ of Habeas Corpus in the California
26 Superior Court. Dkt. No. 1 at 17. In that Petition, Alve raised the same issue he raises here:
27 he “should have been charged by Indictment instead of an Information.” Id. at 18. On
28 September 30, 2020, the Superior Court denied the Petition as successive to “numerous
1 petitions for writ of habeas corpus in [state] court, raising a wide variety of claims” and
2 because it “lack[ed] any legal merit.” Dkt. No. 1 at 17–18. On October 30, 2020, the
3 California Court of Appeal denied a subsequent Petition raising this issue, finding it both
4 “barred as untimely” and “meritless.” Dkt. No. 1 at 22.
5 On February 19, 2021, Alve filed this Petition in the Central District of California.
6 Dkt. No. 1. On February 26, 2021, it was transferred to this Court. Dkt. No. 5.
7 III. ANALYSIS
8 The Petition raises one ground for relief: “Petitioner was unlawfully in prison via
9 ‘Information’ rather than an ‘Indictment’ by the grand jury as a condition precedent for
10 confinement in state prison.” Dkt. No. 1 at 10. Respondents move to dismiss the Petition
11 as untimely and successive. Dkt. No. 15-1 at 2.
12 A. Timeliness
13 The Court first addresses Respondents’ argument that Alve’s Petition is untimely.
14 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a “1-
15 year period of limitation shall apply to an application for a writ of habeas corpus by a
16 person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). “[A]
17 prisoner with a state conviction finalized before [AEDPA’s enactment on] April 24, 1996
18 . . . had until April 23, 1997 to file a federal habeas petition.” Miles v. Prunty, 187 F.3d
19 1104, 1105 (9th Cir. 1999); Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 128 F.3d
20 1283, 1287 (9th Cir. 1997) (“AEDPA’s one-year time limit did not begin to run against
21 any state prisoner prior to the statute’s date of enactment.”), overruled in part on other
22 grounds by Calderon v. U.S. Dist. Court for Cent. Dist. of California, 163 F.3d 530 (9th
23 Cir. 1998).
24 A state court finding a state habeas petition untimely is generally sufficient grounds
25 to bar a federal habeas petition. See Nolan v. Callahan, No. 20-55714, 2021 WL 3829361,
26 at *1 (9th Cir. Aug. 27, 2021) (“California’s timeliness requirement is an independent and
27 adequate state procedural rule which will bar federal relief if violated.”) (citing Walker v.
28 Martin, 562 U.S. 307, 316–317 (2011)). The state court found the exact claim Alve raises
1 in the instant Petition (“his confinement is illegal because he was charged by felony
2 complaint rather than by indictment by a grand jury”) untimely. Dkt. No. 1 at 22. This
3 finding, therefore, supports dismissal of Alve’s Petition.
4 Moreover, the Central District dismissed Alve’s 1999 Federal Petition as untimely.
5 See Dkt. No. 16-2 at 4–6 (“The judgment in [Alve’s] case became final in 1981 . . . the
6 expiration of Alve’s limitation period was April 23, 1997,” however, “[Alve] did not file
7 the present petition until September 9, 1999.”). Under this same analysis, Alve’s instant
8 Petition is also untimely.
9 Alve argues “[i]n this particular case, there is an exception to any procedural bar.”
10 Dkt. No. 17 at 5. Namely, in his retrial on sanity in 1979, the district attorney “suggested”
11 conducting various tests on Alve, did not provide the “inconclusive” test results to the jury,
12 and explained to Alve that “this type of documentation is not acceptable in a court of law,”
13 all of which “impeded [Alve] from filing an appeal.” Id. at 2–4.
14 AEDPA provides a later commencement date for the limitations period “if ‘the
15 applicant was prevented from filing’ a federal habeas petition by an ‘impediment created
16 by State action in violation of the Constitution or laws of the United States.’” Ramirez v.
17 Yates, 571 F.3d 993, 1000 (9th Cir. 2009) (quoting 28 U.S.C. § 2244(d)(1)(B)) (edits
18 omitted) (emphasis added).
19 Alve’s procedural bar argument pertains to his 1979 sanity retrial in state court. Alve
20 does not establish, however, an impediment to the filing of a federal petition. See Barth v.
21 Lackner, Case No. 15-cv-01398-DMG-RAO, 2016 WL 4726565, at *3 (C.D. Cal. Jan. 27,
22 2016) (“[D]elayed accrual under § 2244(d)(1)(B) is not warranted because Petitioner has
23 not shown that a state impediment prevented the filing of a federal habeas petition. Rather,
24 Petitioner claims that the state impeded his ability to file a petition for review in the
25 California Supreme Court on direct review.”), report and recommendation adopted, 2016
26 WL 4718943 (Sept. 9, 2016).
27 Equitable tolling is also unavailable here. Equitable tolling applies when a petitioner
28 establishes “(1) that he has been pursuing his rights diligently, and (2) that some
1 extraordinary circumstance stood in his way and prevented timely filing.” Holland v.
2 Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). “[T]he threshold
3 necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.”
4 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello,
5 212 F.3d 1005, 1010 (7th Cir. 2000)).
6 Alve, who “bears the burden of showing that equitable tolling is appropriate,”
7 Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), has not shown any extraordinary
8 circumstance here. Alve provides no explanation why he could not have raised the issue
9 presented in this Petition (i.e., he is “unlawfully in prison via ‘Information’ rather than an
10 ‘Indictment’”) earlier, and none is apparent to the Court. See Shannon v. Newland, 410
11 F.3d 1083, 1090 (9th Cir. 2005) (“Each of the cases in which equitable tolling has been
12 applied have involved wrongful conduct. . . . Moreover, in each case, the misconduct has
13 actually prevented the prisoner from preparing or filing a timely petition.”) (emphasis in
14 original).
15 In sum, the Court finds Alve’s Petition is untimely, and no State impediment or
16 extraordinary circumstance prevented Alve from filing a timely federal habeas petition.
17 Accordingly, the Court recommends dismissing the Petition as untimely.
18 B. Second or Successive Petitions
19 Respondents also argue that because “Alve unsuccessfully challenged his state court
20 conviction via federal habeas in 1999” and now raises a claim challenging the same
21 conviction, “the Court lacks jurisdiction to adjudicate the Petition.”
22 With certain exceptions, “[a] claim presented in a second or successive habeas
23 corpus application under section 2254 that was not presented in a prior application shall be
24 dismissed.” 28 U.S.C. § 2244(b)(2). “Generally, a new petition is ‘second or successive’ if
25 it raises claims that were or could have been adjudicated on their merits in an earlier
26 petition.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (quoting Cooper v. Calderon,
27 274 F.3d 1270, 1273 (9th Cir. 2001)); see also Brown v. Muniz, 889 F.3d 661, 667 (9th
28 Cir. 2018) (“[A] federal habeas petition is second or successive if the facts underlying the
1 claim occurred by the time of the initial petition, and if the petition challenges the same
2 state court judgment as the initial petition.”) (citation omitted). A dismissal based on the
3 statute of limitations constitutes a judgment on the merits. Plaut v. Spendthrift Farm, Inc.,
4 514 U.S. 211, 228 (1995) (holding dismissal on statute of limitation grounds is treated “as
5 a judgment on the merits”); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
6 (Dismissal on statute of limitations grounds is a “permanent and incurable” bar to federal
7 habeas review and “renders subsequent petitions second or successive. . . .”).
8 The Central District dismissed Alve’s 1999 Federal Petition as untimely. Dkt.
9 Nos. 16-1 at 1; 16-2 at 4. The instant Petition challenges the same conviction as the 1999
10 Federal Petition. Compare Dkt. No. 1 at 2 (Instant Petition: “Conviction on which petition
11 is based: first degree murder; death commuted to 7 to life in 1976”), with Dkt. No. 16-2
12 (Central District Adopted Report and Recommendation: “On July 29, 1976, petitioner was
13 convicted of two counts of murder. . . . Although initially sentenced to death, Petitioner’s
14 sentence was modified to seven years to life.”). Finally, the issue raised in this Petition
15 (i.e., the State proceeded on an information, not an indictment) was known or knowable
16 and could have been raised in Alve’s 1999 Federal Petition. The instant Petition, therefore,
17 is successive. Al Khafaji v. Koenig, No. 19-cv-2413-MMA-LL, 2020 WL 1624063, at *2
18 (S.D. Cal. Apr. 2, 2020) (holding petition second or successive where: (1) prior federal
19 action “clearly resulted in a judgment denying the previous federal Petition on the merits”;
20 (2) “the instant petition and the prior petition both challenge the same judgment[; and (3)]
21 that the facts and events supporting Ground One [of the petition]. . . happened well before
22 the time the prior petition was filed.”).
23 District courts lack jurisdiction to consider the merits of a second or successive
24 petition absent prior authorization from the circuit court. See 28 U.S.C. § 2244(b); see also
25 Burton, 549 U.S. at 153. Alve has made no claim that he obtained permission from the
26 Ninth Circuit to bring this Petition, and the Court’s search of the Ninth Circuit’s docket has
27 found no such authorization. The Court, therefore, recommends dismissing the Petition for
28 lack of jurisdiction.
1 C. CONCLUSION
2 Based on the foregoing, IT IS RECOMMENDED the District Court GRANT
3 ||Respondent’s Motion to Dismiss (Dkt. No. 17) because the Petition is untimely and
4 || successive.
5 IT IS HEREBY ORDERED that on or before November 16, 2021, any party to this
6 ||action may file and serve written objections to this Report and Recommendation. The
7 || document should be captioned “Objection to Report and Recommendation.”
8 IT IS FURTHER ORDERED that any reply to objections must be filed and served
9 || within seven (7) days of the filing of the objections.
10 The parties are advised that failure to file objections within the specified time may
11 || waive the right to raise those objections on appeal of this Court order. Martinez v. □□□□□ 951
12 1153, 1156 (9th Cir. 1991).
13 IT IS SO ORDERED.
14 Dated: October 26, 2021 —
3 Daud Teron,
16 Honorable Daniel E. Butcher
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084666. Public record. Not legal advice.