Kistler v. Atchley

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 BRYAN ANDREW KISTLER, Case No. 3:21-cv-02002-TWR-MSB

12 Petitioner,

ORDER (1) GRANTING MOTION

13 v. TO DISMISS PETITION FOR

WRIT OF HABEAS CORPUS;

14 M.B. ATCHLEY, Warden, et al.,

AND (2) DENYING CERTIFICATE

15 Respondent. OF APPEALABILITY

16

(ECF No. 14)

17

18

19

20 INTRODUCTION

21 Petitioner Bryan Andrew Kistler (“Kistler” or “Petitioner”), a state prisoner, is

22 proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

23 (ECF No. 1, “Pet.”). The Court has read and considered the Motion to Dismiss (ECF No.

24 14, “Mot.”) and Memorandum of Points and Authorities in Support of the Motion to

25 Dismiss (ECF No. 14-1, “Mem. P. & A.”), the Response to the Motion to Dismiss (ECF

26 No. 15, “Resp.”), the lodgments and other documents filed in this case, and the legal

27 arguments presented by both Parties. For the reasons discussed below, the Court GRANTS

28 the Motion to Dismiss, and DENIES a Certificate of Appealability.

1 FACTUAL AND PROCEDURAL BACKGROUND

2 In December 2015, an eighteen-year-old student told her school counselor that her

3 father, Kistler, had sexually assaulted her. (ECF No. 13-1 at 10.) Police were called to the

4 school, and the victim told police that Kistler had been sexually abusing her since she was

5 twelve years old. (Id.) The victim did not want to pursue prosecution at the time because

6 she feared it would break up her family, but she agreed to undergo a sexual assault response

7 team (“SART”) exam. (Id.) A detective was assigned to do a follow-up investigation.

8 (Id.)

9 In early 2016, the victim called the detective assigned to her case and told him her

10 father had sexually assaulted her the night before. (Id. at 11.) The victim’s mother was

11 called to the school to pick up her daughter and the detective told her about the abuse. (Id.)

12 An emergency protective order was then served on Kistler and he was removed from the

13 family home. (Id.) When the mother obtained a temporary restraining order against

14 Kistler, that order was served on him as well. (Id.) In October 2016, the victim told police

15 she wanted to proceed with the prosecution of Kistler, and her SART exam results were

16 submitted to the crime lab for analysis. (Id. at 14.)

17 In May 2018, the detective obtained a DNA sample from Kistler, which was a

18 “match” to male DNA found on one of the victim’s genital swabs. (Id. at 15.) An arrest

19 warrant was subsequently issued for Kistler. (Id.) Sometime thereafter, Kistler fled to the

20 Dominican Republic, and was arrested there in August 2019. (Id.)

21 On March 9, 2020, the San Diego County District Attorney’s Office filed an

22 Amended Complaint charging Kistler with four counts of aggravated sexual assault of a

23 child under the age of fourteen, see Cal. Penal Code (“Penal Code”) § 269(a), two counts

24 of forcible lewd acts on a child under the age of fourteen, see Penal Code § 288(b)(1),

25 seven counts of forcible rape, see Penal Code § 261(a)(2), four counts of sexual penetration

26 by force on a fourteen-year-old child, see Penal Code § 289(a)(1)(A), four counts of lewd

27 acts on a fourteen-year-old child, see Penal Code § 288(c)(1), four counts of forcible oral

28 copulation with a minor fourteen years-of-age or older, see Penal Code § 288a(c)(2)(A),

1 and three counts of continuous sexual abuse of a child under the age of fourteen, see Penal

2 Code § 288.5(a). (ECF No. 13-1 at 47–55.) Kistler pled guilty to three counts of

3 continuous sexual abuse of a child (Penal Code § 288.5(a)) and two counts of forcible rape

4 (Penal Code § 261(a)) in exchange for a stipulated sentence of twenty-eight years in prison

5 and the dismissal of the remaining twenty-three counts. (Id. at 42–46.) He was sentenced

6 on August 12, 2020, and did not appeal. (Id. at 32–39.)

7 Kistler filed a habeas corpus petition in the San Diego Superior Court challenging

8 his conviction on June 15, 2021. (See ECF No. 13-2.) The court denied the petition on the

9 merits in a written order dated June 25, 2021. (See ECF No. 13-5.) Kistler next filed a

10 motion to file a late appeal in the California Court of Appeal on July 19, 2021, and a petition

11 for writ of habeas corpus in the California Court of Appeal on July 27, 2021. (See ECF

12 Nos. 13-6, 13-7.) The state appellate court found Kistler had not been diligent in pursing

13 his rights and denied the motion. (See ECF No. 13-8.) The court then denied the habeas

14 petition as untimely and for failing to state a prima facie case for relief. (See ECF No. 13-

15 9.) So Kistler filed a petition for writ of habeas corpus in the California Supreme Court,

16 which was summarily denied. (See ECF Nos. 13-10, 13-11.) Finally, he filed a petition

17 for writ of coram nobis in the California Court of Appeal on December 29, 2021, which

18 was summarily denied on January 20, 2022. (See ECF Nos. 13-12, 13-13.)

19 Meanwhile Kistler filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

20 § 2254 in this Court on November 21, 2021.1 (ECF No. 1.) Respondent filed a timely

21 Motion to Dismiss and a Memorandum of Points and Authorities in Support of the Motion.

22 (ECF Nos. 14, 14-1.) Kistler subsequently filed a timely Response to the Motion. (ECF

23 No. 15.)

24 / / /

25 / / /

26

27

1 A petition is deemed filed at the moment the prisoner delivers it to prison authorities for forwarding

28 to the Clerk of Court. See Houston v. Lack, 487 U.S. 266, 276 (1988); Anthony v. Cambra, 236 F.3d 568,

1 ANALYSIS

2 Kistler alleges his guilty plea was involuntary and his trial counsel provided

3 ineffective assistance by coercing him to plead guilty by misrepresenting the sentence he

4 would receive, failing to investigate his case, and failing to file a timely notice of appeal.

5 (Pet. at 6, 16–17, 20–21, 24, 37, 35, 37, 41–45.) He also alleges the prosecution withheld

6 exculpatory material. (Id. at 21, 36.) Respondent contends the Petition is untimely because

7 the statute of limitations began running when Kistler’s conviction became final, expired

8 before he filed his federal habeas corpus Petition, and Kistler is not entitled to sufficient

9 statutory or equitable tolling to make the Petition timely. (See Mem. P. & A.) Respondent

10 also argues Kistler’s claims are procedurally defaulted. (Id.)

11 I. Timeliness

12 A one-year statute of limitation applies to petitions for writ of habeas corpus filed

13 by a state prisoner who is challenging his state court conviction in federal court. 28 U.S.C.

14 § 2244(d)(1). The limitation period begins to run “from the latest of” the following:

15 (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;

16

17 (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

18

removed, if the applicant was prevented from filing by such State action;

19

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

20

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

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

review; or

22

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

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

24

25 28 U.S.C. § 2244(d)(1).

26 Kistler alleges he “[did] not know[] . . . and he could not, in exercising due diligence,

27 have discovered” the basis for his claims “substantially earlier than the time of the writ,”

28 (Pet. at 30), which means there are two possible start dates for the statute of limitations:

1 the date Kistler’s conviction became final, and the date Kistler could have, “through the

2 exercise of due diligence,” discovered the factual basis for his claims.

3 A. Timeliness Under 28 U.S.C. § 2244(d)(1)(A)

4 Kistler pled guilty on March 9, 2020, and was sentenced on August 12, 2020; he did

5 not appeal his conviction or sentence. (ECF No. 13-1 at 33–37, 42–45.) His conviction

6 therefore became final sixty days later, on October 12, 2020, when the time for an appeal

7 under California law expired.2 (Id. at 33); Cal. R. Ct. 8.308(a). The statute of limitations

8 began running the next day and absent any tolling, it expired on October 12, 2021. Kistler

9 filed his federal habeas corpus petition forty days later on November 21, 2021. The statute

10 of limitations, however, is subject to both statutory and equitable tolling. See 28 U.S.C.

11 § 2244(d)(1); Holland v. Florida, 560 U.S. 631, 649 (2010).

12 1. Statutory Tolling

13 28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a properly filed

14 application for State post-conviction or other collateral review . . . is pending shall not be

15 counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

16 Kistler filed a petition for writ of habeas corpus in the San Diego Superior Court on June

17 15, 2021. (See ECF No. 13-2.) The superior court denied the petition on June 25, 2021.

18 (See ECF No. 13-5.) Kistler is thus entitled to ten days of statutory tolling from June 15,

19 2021 to June 25, 2021 for this filing. See 28 U.S.C. § 2244(d)(2).

20 Kistler is not entitled to any statutory tolling, however, for the habeas corpus

21 petitions he filed in the California Court of Appeal and the California Supreme Court

22 because they were found to be untimely. “[A]n application is pending as long as the

23 ordinary state collateral review process is ‘in continuance’—i.e., ‘until the completion of’

24 that process.” Carey v. Saffold, 536 U.S. 214, 219–20 (2002). Generally, this includes the

25 time during which a petition is being considered by a state court and the time between

26

27

2 The sixtieth day was October 11, 2020, which was a Sunday. That day is therefore excluded from

28 the computation of time. See Cal. Civ. Proc. Code §§ 12, 12(a); People v. Malone, 213 Cal. 406, 407–10

1 filings, referred to as “gap tolling.” See Porter v. Ollison, 620 F.3d 953, 958 (9th Cir.

2 2010); see also Evans v. Chavis, 546 U.S. 189, 199–200 (2006). When a state court petition

3 is found to be untimely, however, it is not “properly filed,” as defined in 28 U.S.C.

4 § 2244(d)(2) and a petition is not entitled to statutory tolling for either the time the petition

5 was pending or the time between filings. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

6 An untimely state habeas petition “must be treated as improperly filed, or as though it never

7 existed, for purposes of section 2244(d).” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.

8 2011).

9 The habeas corpus petition Kistler filed in the California Court of Appeal on June

10 20, 2021 was denied as untimely pursuant to In re Reno, 55 Cal. 4th 428, 459–60 (2012),

11 and for failure to state a claim. (See ECF No. 13-9.) The petition for review Kistler filed

12 regarding the denial of his habeas corpus petition in the California Supreme Court on

13 August 18, 2021, was summarily denied on September 29, 2021, meaning the California

14 Supreme Court denied Kistler’s petition as untimely as well. (See ECF Nos. 13-11); see

15 Ylst v. Nunnemaker, 501 U.S. 797, 805–06 (1991) (stating that where there is no reasoned

16 decision from the state’s highest court, the Court “looks through” to the last reasoned state

17 court decision and presumes it provides the basis for the higher court’s denial of a claim or

18 claims). Thus, Kistler is not entitled to any statutory tolling for the state habeas corpus

19 petitions he filed in the California Court of Appeal or the California Supreme Court. See

20 Pace, 544 U.S. at 417; Lakey, 633 F.3d at 786.

21 Kistler also filed a motion to file a late notice of appeal in the California Court of

22 Appeal on July 6, 2021. (See ECF No. 13-6.) This filing did not toll the statute of

23 limitations because it is not an “application for State post-conviction or other collateral

24 review.” 28 U.S.C. § 2244(d)(2); see Stokes v. Sandor, No. CV 09-6526-SJO (JEM), 2010

25 WL 1643557, at *3 (C.D. Cal. Mar. 10, 2010) (finding a request to file a late notice of

26 appeal did not toll the statute of limitations because it was not directed at Petitioner’s

27 underlying conviction and sentence and collecting cases).

28 For the reasons discussed, Kistler’s conviction became final on October 12, 2020.

1 The one-year statute of limitations would have expired on October 12, 2021, but Kistler is

2 entitled to ten days of statutory tolling. Accordingly, his federal habeas corpus petition

3 was due on October 22, 2021. He did not file his petition until November 21, 2021, and

4 therefore the Petition is untimely unless he is entitled to sufficient equitable tolling to make

5 it timely.

6 2. Equitable tolling

7 The statute of limitations under the Antiterrorism and Effective Death Penalty Act

8 (“AEDPA”) “is subject to equitable tolling in appropriate cases.” Holland, 560 U.S. at

9 645. “To be entitled to equitable tolling, [Petitioner] must show ‘(1) that he has been

10 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

11 way’ and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)

12 (quoting Pace, 544 U.S. at 418). Equitable tolling is “unavailable in most cases,” and “the

13 threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the

14 rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citations omitted). A

15 petitioner must show that “‘the extraordinary circumstances’ were the cause of his

16 untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Stillman v.

17 LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003)).

18 In addition to his attorney failing to file a timely notice of appeal, Kistler claims that

19 a series of events beginning shortly after he was sentenced impeded his ability to file his

20 federal habeas corpus petition in a timely manner. In early September 2020, a few weeks

21 after he was sentenced, Kistler claims he wrote to his trial attorney and told him he wanted

22 to withdraw his plea and received no response. (ECF No. 13-3 at 34.) He then arrived at

23 state prison in late September 2020 and was placed in Covid-19 quarantine. (Id. at 35; Pet.

24 at 50.) On October 24, 2020, Kistler was assaulted by a fellow inmate—he spent three

25 days in the hospital and was released back to the prison on October 27, 2020. (ECF No.

26 13-3 at 18, 25, 58; Pet. at 50.) He claims that during November and December of 2020 he

27 was again placed in quarantine and contracted Covid-19. (ECF No. 13-3 at 35.) On

28 January 20, 2021, Kistler was transferred to Salinas Valley State Prison and placed in

1 quarantine again. (Id.) Kistler states that in February and March of 2021, he sent letters

2 to his attorney, the San Diego Superior Court, and the San Diego District Attorney’s office

3 notifying them he wished to withdraw his plea but received no responses. (Id.) On March

4 20, 2021, Kistler claims his attorney told his family members he would help Kistler

5 withdraw his plea. (Id. at 36.) And during April 2021, Kistler claims he again sent letters

6 to his attorney telling him he wanted to withdraw his plea and asking for his court

7 documents, but he received no response. (Id.) He continued to send letters to his attorney,

8 various courts, and the California State Bar through May, June, and July of 2021, but he

9 still received no responses. (Pet. at 54–55.) He filed his first state habeas petition on June

10 15, 2021, nine months after his conviction became final on October 11, 2020. (ECF No.

11 13-2.)

12 Kistler’s attorney’s failure to respond to his inquiries about a motion to withdraw his

13 plea is not sufficient to entitle him to equitable tolling for his federal petition because it is

14 not an “extraordinary circumstance” that “prevented timely filing.” Lawrence, 549 U.S. at

15 336–37. Nor is his attorney’s failure to file a timely notice of appeal. “[W]here an

16 attorney’s misconduct is sufficiently egregious, it may constitute an ‘extraordinary

17 circumstance’ warranting equitable tolling of AEDPA’s statute of limitations.” Spitsyn,

18 345 F.3d at 800 (citation omitted). To be sure, an attorney’s failure to respond to a client

19 or former client’s inquiries is unprofessional. But “[n]ot all attorney mistakes qualify as a

20 basis for equitable tolling,” and “run of the mill mistakes by one’s lawyer that cause a filing

21 deadline to be missed do not rise to the level of extraordinary circumstances.” Luna v.

22 Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Frye v. Hickman, 273 F.3d 1144, 1146

23 (9th Cir. 2001)). Kistler has not explained how counsel’s failure to respond to his inquiries

24 about filing a motion to withdraw his plea, failing to file a motion to withdraw his plea, or

25 failing to file a timely notice of appeal were the cause of Kistler’s failure to file a timely

26 federal habeas corpus petition. Spitsyn, 345 F.3d at 799; Randle v. Crawford, 604 F.3d

27 1047, 1058 (9th Cir. 2010) (“Counsel’s failure to perfect an appeal simply meant that [the

28 petitioner] had one year from the expiration of his time to file a notice of appeal in which

1 to initiate a federal habeas action—it did not prevent him from filing the petition.”); see

2 also Littleton v. Garcia, No. CV 10-1655-AG (JC), 2010 WL 5563578, at *4 (C.D. Cal.

3 Nov. 12, 2010) (stating that “[t]he failure to file a notice of appeal as instructed constitutes

4 nothing more than negligence”).

5 The Covid-19 quarantines and transfers Kistler was subjected to, and the hospital

6 stay he underwent, may be sufficient to qualify as an “extraordinary circumstance” if they

7 resulted in “a complete lack of access to a legal file [because] it is ‘unrealistic to expect a

8 habeas petitioner to prepare and file a meaningful petition on his own within the limitations

9 period without access to his legal file.’” Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.

10 2009) (quoting Espinoza-Matthews v. California, 432 F.3d 1021, 1027–28 (9th Cir. 2005)).

11 But Kistler has not provided sufficient support for his claim that the Covid-19 quarantines,

12 transfers, and his hospital stay were the “but for” cause of his inability to file his federal

13 habeas corpus petition on time.3 Moreover, Kistler would still need to show he was

14 “diligently pursuing his rights” to be entitled to equitable tolling. As discussed below in

15 Section II, the Court concludes Kistler was not diligent, and therefore he is not entitled to

16 any equitable tolling.

17 3. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(A)

18 The statute of limitations for Kistler’s conviction began running on October 11,

19 2020, and, with statutory tolling, expired on October 21, 2021. He is not entitled to any

20 equitable tolling. Therefore, his Petition, filed on November 21,2021, is untimely under

21 28 U.S.C. § 2244(d)(1)(A).

22 B. Timeliness Under 28 U.S.C. § 2244(d)(1)(D)

23 Whether the Petition is timely under 28 U.S.C. § 2244(d)(1)(D) depends on what

24 date “the factual predicate of the claim or claims presented could have been discovered

25

26

3 The Court declines to consider whether to conduct an evidentiary hearing on this question. Even

27

if Kistler successfully established he was entitled to sufficient equitable tolling to render his federal

28 Petition timely, his Petition would still be subject to dismissal because, as this Court concludes, his claims

1 through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The Ninth Circuit

2 describes the inquiry as follows:

3 “Due diligence does not require ‘the maximum feasible diligence,’ but it does

require reasonable diligence in the circumstances.”

4

5 “Section 2244(d)(1)(D) provides a petitioner with a later accrual date

than section 2244(d)(1)(A) only ‘if vital facts could not have been known’”

6

by the date the appellate process ended. The “due diligence” clock starts

7 ticking when a person knows or through diligence could discover the vital

facts, regardless of when their legal significance is actually discovered.

8

9 Although section 2244(d)(1)(D)’s due diligence requirement is an

objective standard, a court also considers the petitioner’s particular

10

circumstances. (Citations omitted.) Just as the petitioner’s particular

11 circumstances may include impediments to discovering the factual predicate

of a claim, they may also include any unique resources at the petitioner’s

12

disposal to discover his or her claim. See, e.g., Schlueter [v. Varner, 384 F.3d

13 69, 75 (3rd Cir. 2004)] (considering that a petitioner’s parents actively assisted

him in evaluating his diligence).

14

15 Ford v. Gonzalez, 683 F.3d 1230, 1235–36 (9th Cir. 2012) (citations and footnote omitted);

16 see also Daley v. Beard, No. 2:14-cv-2691 MCE DB P, 2017 WL 56869, at * 5 (E.D. Cal.

17 Jan. 5, 2017) (“In considering a prisoner’s claim that counsel was constitutionally

18 ineffective for failing to file a proper notice of appeal, a court should focus on the prisoner’s

19 conditions of confinement, a prisoner’s ability to communicate with the court and counsel,

20 and communications between the prisoner’s counsel and between the prisoner and the

21 court.”)

22 Kistler alleges counsel provided ineffective assistance in three ways: (1) he failed to

23 file a notice of appeal; (2) he failed to investigate his case; and (3) he coerced Kistler into

24 pleading guilty by misrepresenting the sentence he was going to receive. (Pet. at 6, 16–17,

25 27.) Each of these claims must be analyzed separately under 28 U.S.C. § 2244(d)(1)(D)

26 for timeliness. See Pace, 544 U.S. at 416 n.6.

27 / / /

28 / / /

1 1. Failure to File a Notice of Appeal

2 Kistler has not established the necessary diligence to secure a later start date under

3 § 2244(d)(1)(D) for his claim that counsel provided ineffective assistance when counsel

4 failed to file a notice of appeal. The first time Kistler took action regarding his attorney’s

5 failure to file a notice of appeal is June 6, 2021, when Kistler filed a request to file a late

6 notice of appeal in the California Court of Appeal. (ECF No. 13-6.) By then, nine months

7 had passed since Kistler’s notice of appeal was due on October 11, 2020. In similar cases,

8 district courts in California have concluded that petitioners could have discovered their

9 attorney had failed to file a notice of appeal through the exercise of due diligence by the

10 sixty-day deadline for filing such a notice. See Favela v. Madden, No. CV-16-8896-JAK

11 (E), 2017 WL 1449228, at *5 (C.D. Cal. March 15, 2017); Boddie v. Duffy, No. CV-14-

12 8964 -SWV(E), 2015 WL 5921321, at *9 (C.D. Cal. Apr. 7, 2015); Dominguez v. McEwan,

13 No. 1:12-cv-00784, at *2, 2012 WL 4863227 (E.D. Cal. Oct. 11, 2012); Stokes, 2010 WL

14 1643557, at *2 n.2; Mayer v. Marshall, No. CV-08-5585-RSWL (AGR), 2009 WL 102809,

15 at *3 (C.D. Cal. Jan 12, 2009).

16 Further, though Kistler has recounted the many letters he wrote to his trial counsel,

17 the state court, and the San Diego District Attorney, which were not responded to, those

18 efforts related only to his request to file a motion to withdraw his plea, not a notice of

19 appeal. (See Pet. at 50, 54–55; ECF No. 13-3 at 34–36.) And while the Court must consider

20 “a petitioner’s particular circumstances [and] impediments to discovering the factual

21 predicate of a claim,” Ford, 683 F.3d at 1235, it must also consider “any unique resources

22 at the petitioner’s disposal to discover his or her claim.” (Id.) Here, it is clear from the

23 mail logs Kistler has supplied that he was able to mail documents to various individuals

24 and courts since at least February 2021. (See Pet. at 53–56.) But he did not mail anything,

25 including either a notice of appeal or a request for information about his appeal, to the

26 California Court of Appeals until July of 2021 when he filed a request to file a late notice

27 of appeal. (See Pet. at 53–56; ECF No. 13-6.) It is also clear from both the declaration and

28 the exhibits attached to the petition for writ of habeas corpus he filed in the San Diego

1 Superior Court that he had the assistance of family members outside of prison who were

2 helping him with his attempts to obtain his case file and who were in contact with his trial

3 counsel. (See ECF No. 13-3 at 23, 36.) These documents show he did not seek his family’s

4 assistance to file a notice of appeal or obtain information about the status of his appeal.

5 (See id.) Instead, he only sought assistance regarding filing a motion to withdraw his plea

6 and obtaining his file from his attorney. (See id.)

7 For the reasons stated above, the Court concludes that Kistler was not diligent in

8 pursuing his ineffective assistance of counsel claim based on counsel’s failure to file a

9 notice of appeal. Thus, he is not entitled to a later start date under § 2244(d)(1)(D) for this

10 claim.

11 2. Failure to Investigate and Coercing His Guilty Plea

12 Kistler’s claims that his attorney provided ineffective assistance of counsel by failing

13 to investigate his case and coercing him to plead guilty are also not entitled to a later start

14 date under 28 U.S.C. § 2244(d)(1)(D). Kistler admitted on the plea form that he had “lived

15 in the same home with Kate K.,” had “engaged in three or more acts of sexual conduct with

16 Kate K. in violation of PC 288.5(a),” and “had sexual intercourse with Kate K. against her

17 will, by means of force and duress, in violation of PC 261(a)(2) on two separate occasions.”

18 (ECF No. 13-1 at 42–46.) These admissions put Kistler on notice that counsel’s

19 investigation of his case had concluded. Thus, he could have discovered, “through the

20 exercise of due diligence,” the basis for his claim that counsel did not investigate his case

21 at the time he pleaded guilty.

22 The same is true of Kistler’s coerced plea claim. Kistler alleges his attorney coerced

23 him into pleading guilty by misrepresenting the sentence he would receive and that the plea

24 “was involuntarily made under inducement, coercion, and without knowledge of counsel

25 of record, making the plea illegal, null, and void.” (Pet. at 16.) He claims his signature on

26 the plea form was forged, and that trial counsel told him that if he pleaded guilty, “the

27 district attorney [would] recommend to the court that he be given probation and a

28 suspended sentence, and the court always follows the recommendation.” (Id. at 24, 27.)

1 He also alleges that he was not advised of the following consequences of his plea: fines,

2 restitution, and penalty assessments; the maximum possible sentence he faced; his

3 ineligibility for probation; his right to appeal; that the court would find him guilty if he

4 pleaded no contest;4 and the benefits he was receiving by pleading guilty. (Id. at 41–42.)

5 The plea form Kistler signed shows he was advised, and he acknowledged, that by pleading

6 guilty he would receive a maximum stipulated sentence of twenty-eight years in prison.

7 (ECF No. 13-1 at 42–46.) Thus, the factual basis for Kistler’s claim regarding counsel

8 misrepresenting his sentence “could have been discovered through the exercise of due

9 diligence” at the latest when Kistler pled guilty. The plea form also advised him that he

10 would receive twenty years of parole, a $10,000 fine, and a restitution fine of $300 to

11 $10,000. (Id. at 43.) It further advised him that “a plea of No Contest is the same as a plea

12 of Guilty for all purposes,” and that the prosecution would dismiss the remaining twenty-

13 three counts in the complaint in exchange for his guilty plea to five counts. (Id. at 42.)

14 Thus, Kistler could have discovered the factual predicate for his claim that counsel coerced

15 him into pleading guilty through the exercise of due diligence no later than when he pled

16 guilty.

17 For the foregoing reasons, no later start date under 28 U.S.C. § 2244(d)(1)(D) is

18 available for these claims. The Court therefore concludes the Petition is untimely under

19 28 U.S.C. § 2244(d)(1)(D).

20 II. Procedural Default

21 Respondent also argues Kistler’s Petition must be dismissed because it is

22 procedurally defaulted. (Mem. P. & A. at 8–15.) The Ninth Circuit has held that because

23 procedural default is an affirmative defense, in order to establish a claim is procedurally

24 defaulted, Respondent must first “adequately [plead] the existence of an independent and

25 adequate state procedural ground . . . .” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.

26 2003). In order to place that defense at issue, Kistler must then “assert[] specific factual

27

28

1 allegations that demonstrate the inadequacy of the state procedure . . . .” Id. The “ultimate

2 burden” of proving procedural default, however, belongs to the state. Id. If the state meets

3 its burden under Bennett, federal review of the claim is foreclosed unless Kistler can

4 “demonstrate cause for the default and actual prejudice as a result of the alleged violation

5 of federal law, or demonstrate that failure to consider the claims will result in a fundamental

6 miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

7 A state procedural rule is “independent” if the state law basis for the decision is not

8 interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040–41 (1983); Harris

9 v. Reed, 489 U.S. 255, 265 (1989). A ground is “interwoven” with federal law if the state

10 has made application of the procedural bar depend on an antecedent ruling on federal law

11 such as the determination of whether federal constitutional error has been committed. See

12 Ake v. Oklahoma, 470 U.S. 68, 75 (1985). “To qualify as an ‘adequate’ procedural ground,

13 a state rule must be ‘firmly established and regularly followed.’” Walker v. Martin, 562

14 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). Where a state

15 court order cites multiple state procedural grounds—not all of which would bar federal

16 review—without specifying which bar or bars apply to which claims and “if it is impossible

17 for the federal court to ascertain whether such grounds have been relied upon, the state

18 court decision cannot bar federal review.” Koerner v. Grigas, 328 F.3d 1039, 1052 (9th

19 Cir. 2003).

20 Here, Kistler raised his ineffective assistance of counsel claims in the petition for

21 review he filed in the California Supreme Court, which summarily denied the petition.

22 (ECF Nos. 13-10, 13-11.) This Court must therefore “look through” to the last reasoned

23 state court decision denying his claims. Ylst, 501 U.S. at 805–06. Here, that is the state

24 appellate court’s opinion addressing Kistler’s habeas petition, which clearly found

25 Kistler’s entire petition, including the ineffective assistance of counsel claims, to be

26 procedurally barred by In re Reno, 55 Cal. 4th at 459, and that Kistler had failed to state a

27 prima facie case for relief. (See ECF No. 13-9 at 3–4.)

28 / / /

1 The timeliness bar of In re Reno, 55 Cal. 4th at 459 is an independent and adequate

2 state procedural bar. See Johnson v. Lee, 578 U.S. 605, 608–09 (2016) (per curiam);

3 Walker, 562 U.S. at 317; State v. Gonzales, 809 F. App’x 367, 370 (9th Cir. 2020); Mares

4 v. Clark, No. 8:21-cv-00843-RGK-KES, 2022 WL 1433534, at *16 (C.D. Cal. Feb. 24,

5 2022). Kistler must therefore “demonstrate cause for the default and actual prejudice as a

6 result of the alleged violation of federal law, or demonstrate that failure to consider the

7 claims will result in a fundamental miscarriage of justice” in order for this Court to consider

8 his claim. Coleman, 501 U.S. at 750.

9 The “cause” prong is satisfied if Kistler can demonstrate some “objective factor”

10 that precluded him from raising his claims in state court. McCleskey v. Zant, 499 U.S. 467,

11 493–94 (1991). Here, there are two possible bases for satisfying the cause prong. First is

12 Kistler’s claim that trial counsel was ineffective because he did not file a notice of appeal.

13 (Pet. at 6.) Ineffective assistance of counsel can constitute “cause” for default under certain

14 circumstances. The Supreme Court has held that “a procedural default will not bar a federal

15 habeas court from hearing a substantial claim of ineffective assistance at trial if, in the

16 [State’s] initial-review collateral proceeding, there was no counsel or counsel in that

17 proceeding was ineffective.” Martinez v. Ryan, 566 U.S. 1, 17 (2012). To establish

18 “cause” under Martinez, Kistler must show:

19 (1) the underlying ineffective assistance of trial counsel claim is “substantial”;

(2) the petitioner was not represented or had ineffective counsel during the

20

PCR [post-conviction relief] proceeding; (3) the state PCR proceeding was

21 the initial review proceeding; and (4) state law required (or forced as a

practical matter) the petitioner to bring the claim in the initial review collateral

22

proceeding.

23

24 Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (citing Trevino v. Thaler, 569 U.S.

25 413, 423 (2013)).

26 Kistler’s initial collateral proceeding was the habeas corpus petition he filed in the

27 San Diego Superior Court which denied his ineffective assistance of counsel claims on the

28 merits. (See ECF Nos. 13-2 to 13-5.) It was the California Court of Appeal that imposed

1 the timeliness bar of In re Reno in its opinion denying Kistler’s subsequent habeas corpus

2 petition. (ECF No. 13-9.) Thus, Kistler’s default did not occur in the “initial-review

3 collateral proceeding stage,” and Martinez does not apply.

4 The second possible basis for satisfying the cause prong is the alleged failure of

5 counsel to respond to Kistler’s letters and phone calls and the various prison conditions

6 Kistler alleges he was subjected to—being quarantined due to Covid-19 in September,

7 November, and December of 2020, the assault by a fellow inmate in October 2020 and

8 resulting hospital stay, and Kistler’s transfer to Salinas Valley State Prison in January 2021.

9 It is possible these conditions could form the basis for cause, but Kistler would have to

10 establish they actually prevented him from filing a timely habeas corpus petition in the

11 state appellate court, which he has not done. McCleskey, 499 U.S. at 497; Stewart v.

12 Johnson, No. 2:21-cv-01490-APG-BNW, 2023 WL 205773, at *4 (D. Nev. Jan. 14, 2023).

13 And even if Kistler was able to establish cause for his default, he has not established

14 prejudice. “Prejudice [sufficient to excuse procedurally barred claims] is actual harm

15 resulting from the alleged error.” Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).

16 Kistler has not demonstrated he suffered prejudice from any of the instances of ineffective

17 assistance of counsel he alleges because his claims are conclusory and without factual

18 support. He claims counsel did not investigate his case, but he has not explained what

19 investigation counsel should have performed and how it would have changed the outcome.

20 He claims his attorney coerced him into pleading guilty by telling him he would be granted

21 probation and that he was not advised of the maximum possible sentence he faced, but

22 Kistler’s plea form shows he acknowledged that by pleading guilty, he would receive a

23 maximum sentence of twenty-eight years in prison. (ECF No. 13-1 at 42–46.) Kistler has

24 provided no facts to contradict this acknowledgment, which he signed under penalty of

25 perjury. He alleges he was not told (1) he was ineligible for probation, (2) he was waiving

26 his right to appeal, (3) that the court would find him guilty if he pleaded no contest, (4) that

27 he would be subject to fines and penalties, and (5) the benefits he was receiving by pleading

28 guilty. (Pet. at 41–42, 50.) The plea form he signed under penalty of perjury, however,

1 shows he was advised that by pleading guilty he would be denied probation and that he

2 was giving up his right to appeal. (ECF 13-1 at 43.) It also shows he was aware of “issues

3 related to strike priors,” the stipulated sentence he was to receive, that “a plea of No Contest

4 is the same as a plea of Guilty for all purposes,” and that he would receive a $10,000 fine

5 and a restitution fine of $300 to $10,000.” (Id.) The plea form also told Kistler that in

6 return for pleading guilty the prosecution agreed to dismiss twenty-three of the twenty-

7 eight counts he was facing. (Id. at 42.) Kistler has not provided any evidence that

8 contradicts these facts. Without any evidence to support his claims, beyond his own self-

9 serving statements, Kistler has not established he was prejudiced by the state appellate

10 court’s imposition of a procedural bar to them.

11 Kistler has also not shown that failure to review his defaulted claims “will result in

12 a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The Supreme Court has

13 limited the “miscarriage of justice” exception to petitioners who can show “a constitutional

14 violation has probably resulted in one who is actually innocent.” Schlup v. Delo, 513 U.S.

15 298, 327 (1995). In Schlup, the Supreme Court explained a petitioner’s claim of actual

16 innocence can act as a “gateway” to having his otherwise procedurally defaulted claims

17 considered by a federal court. Id. at 326–27. The Court has noted the standard is

18 “demanding.” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013). “The gateway should

19 open only when a petition presents ‘evidence of innocence so strong that a court cannot

20 have confidence in the outcome of the trial unless the court is also satisfied that the trial

21 was free of nonharmless constitutional error.’” Id. (quoting Schlup, 513 U.S. at 316); Wood

22 v. Hall, 130 F.3d 373, 379 (9th Cir. 1997) (A petitioner “must demonstrate more than that

23 ‘a reasonable doubt exists in the light of the new evidence,’ . . . [he] must show ‘it is more

24 likely than not that no reasonable juror would have convicted him in light of the new

25 evidence.’” (citation omitted)). Kistler has not provided the Court with any facts

26 supporting a conclusion that he is actually innocent of the charges of which he was

27 convicted, or that “it is more likely than not that no reasonable juror would have convicted

28 / / /

1 him in light of the new evidence.” See Wood, 130 F.3d at 379. Accordingly, the Court

2 concludes Kistler’s ineffective assistance of counsel claims are procedurally defaulted.

3 III. Prosecutorial Misconduct

4 In his Petition, Kistler alleges the prosecutor “intentionally withheld exculpatory

5 evidence regarding jurisdiction and due process procedures as outlined in the Treaty

6 between the United States and the Dominican Republic,” as well as “communication

7 between the district attorney’s office and the Attorney General of the state of California,

8 warrants, and communication with law enforcement in the Dominican Republic, US

9 Marshals and FBI, which would reveal further grounds that petitioner would not have taken

10 a plea deal.” (Pet. at 20–21.) He also claims “police suppressed material of key witness

11 statement, contradictory DNA evidence, jurisdiction and extradition documents having

12 exculpatory value.” (Id. at 36–37.) Kistler raised a similar claim in the petition for writ of

13 habeas corpus he filed in the California Supreme Court. (See ECF No. 13-10 at 14.) There

14 he stated that “the perjury of prosecution and police suppressed material of contradictory

15 DNA evidence having exculpatory value withheld by prosecution . . . will prove

16 defendant’s innocence and renders plea involuntary . . . .” (Id.)

17 Neither the state courts nor Respondent have addressed this claim. Giving Kistler

18 every benefit of the doubt, and assuming for the purposes of this Order that this claim is

19 exhausted, timely, and not procedurally defaulted, the Court will address this claim on the

20 merits. Where, as here, there is no state court opinion to which this Court can defer, the

21 Court must review the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.

22 2002).

23 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held a prosecutor

24 must disclose all material evidence, including impeachment evidence, to the defendant.

25 Brady, 373 U.S. at 87. In order to establish a Brady violation, Kistler must prove three

26 elements: (1) the evidence was suppressed by the prosecution, either willfully or

27 inadvertently; (2) the withheld evidence was either exculpatory or impeachment; and (3)

28 the evidence was material to the defense. See Strickler v. Greene, 527 U.S. 263, 281–82

1 (1999); Benn v. Lambert, 283 F.3d 1040, 1052–53 (9th Cir. 2002) (citing United States v.

2 Bagley, 473 U.S. 667, 676, 678 (1985) and United States v. Agurs, 427 U.S. 97, 110

3 (1976)). “Evidence is deemed prejudicial, or material, only if it undermines confidence in

4 the outcome of the trial.” Benn, 283 F.3d at 1053 (citing Bagley, 473 U.S. at 676 and

5 Agurs, 427 U.S. at 111–12). “Moreover, we analyze all of the suppressed evidence

6 together, using the same type of analysis that we employ to determine prejudice in

7 ineffective assistance of counsel cases.” Id. (citing Bagley, 473 U.S. at 682 and United

8 States v. Shaffer, 789 F.2d 682, 688–89 (9th Cir. 1986)). “The question is not whether the

9 defendant would more likely than not have received a different verdict with the evidence,

10 but whether in its absence he received a fair trial, understood as a trial resulting in a verdict

11 worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).

12 Kistler has not explained what exculpatory evidence was allegedly contained in the

13 “jurisdiction and due process procedures” of the extradition treaty between the United

14 States and the Dominican Republic, the “communication between the district attorney’s

15 office and the Attorney General of the state of California, warrants, and communication

16 with law enforcement in the Dominican Republic,” or the “key witness statement, [and]

17 contradictory DNA evidence.” (Pet. at 20–21, 36–37.) Nor has he explained how any such

18 evidence was suppressed by the prosecution or how that evidence was material to his

19 defense. Strickler, 527 U.S. at 281–82. His claims are both conclusory and speculative,

20 and he is therefore not entitled to relief as to this claim. See James v. Borg, 24 F.3d 20, 26

21 (9th Cir. 1994) (stating that “[c]onclusory allegations which are not supported by a

22 statement of specific facts do not warrant habeas relief”); Roybal v. Davis, 148 F. Supp. 3d

23 958, 1105 (S.D. Cal. 2015) (citing James, 24 F.3d at 26).

24 CONCLUSION

25 For the foregoing reasons, the Court GRANTS Respondent’s Motion to Dismiss

26 (ECF No. 14) and DISMISSES Kistler’s Petition. Rule 11 of the Rules Following 28

27 U.S.C. § 2254 require the District Court to “issue or deny a certificate of appealability

28 when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254 (West

1 ||Supp. 2020). A certificate of appealability will issue when the petitioner makes a

2 “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; Pham v.

3 || Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial showing” requires a

4 ||demonstration that “reasonable jurists would find the district court’s assessment of the

5 || constitutional claims debatable or wrong.” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir.

6 || 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court concludes

7 || Kistler has not made the required showing, and therefore a certificate of appealability is

8 ||hereby DENIED.

9 IT IS SO ORDERED.

10 Dated: March 7, 2023 —_——

| od) (2 re

12 Honorable Todd W. Robinson

3 United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28