Coleman v. Hill

AKEEM RUSHARD COLEMAN, Petitioner, v. JAMES HILL, Warden, Respondent.

No. 2:22-cv-01897-FLA-KES

United States District Court, C.D. California

March 28, 2022

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY

KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE.

On March 14, 2022, Akeem Rushard Coleman (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (“Petition” at Dkt. 1.)^[1] For reasons discussed more fully below the Court orders Petitioner to show cause why the Petition should not be summarily dismissed as untimely.

I. BACKGROUND

The following facts are taken from the Petition, the Court's own records, or public court records. Where necessary, the Court takes judicial notice of the latter. See Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”).

Petitioner declares that on July 25, 2006, at age sixteen, he rode in a car with two other men (shown in other court records to be James Robert Keys and Steven Paul Jones) to a residential location that Keys and Jones had targeted for a home invasion robbery. Keys and Jones were “of greater stature” than Petitioner. Petitioner stayed in the car while Keys and Jones broke in. Petitioner saw one of his co-defendants gesture to him, summoning him to the door of the residence. Petitioner went and stood outside the door without entering because he was instructed to act as a lookout. He stayed at the doorway “visible and known to be present . . . only to my co-defendants” and not the two victims. (Dkt. 1 at 24.)

Petitioner was arrested in connection with these events in October 2006. When interrogated by the police, he told them the same version of events as set forth in his declaration, but they “warped” his statements and “twisted out a warped confession.” (Id. at 13, 24.) Petitioner was charged in Los Angeles County Superior Court (“LASC”) case no. BA306578-02 with two counts of violating California Penal Code (“PC”) sections 264.1 (aiding and abetting rape), 211 (robbery), and 459 (burglary), and one count of violating PC section 288a(C)(2)^[2] (forcible oral copulation). Petitioner was charged as defendant #2 along with co-defendants Keys and Jones. See https://www.lacourt.org/criminalcasesummary/ui/ (search “BA306578” and select hyperlink for Petitioner's criminal case).

Keys and Jones went to trial. Trial testimony, as summarized by the California Court of Appeal, described a home invasion robbery at the apartment of two women who were beaten, choked, raped, robbed, and threated. People v. Jones, No. B226682, 2012 WL 284579, at *1-5 (Cal.Ct.App. Feb. 1, 2012). The California Court of Appeal described evidence identifying the three perpetrators as follows:

On July 25, 2006, two roommates, T. G. and Paula L., lived in an apartment in Hollywood. They were victims of a home invasion robbery and sexual assaults. They identified three perpetrators of the crimes. Each woman used a different method to distinguish among the men who entered the apartment. T. referred to the men as the “first” man/suspect, the “second” man/suspect and the “third” man/suspect. She further explained the third man/suspect was “skinny.” Paula distinguished the men by size: the large man, the medium man, and the skinny/smaller man. T. testified all sexual assaults were committed by the “first” man. Paula testified the sexual assaults were committed by the medium-sized man. Jones's sperm and DNA were located throughout the residence. . . . Jones was the person who committed the sexual assaults and was the person referred to as the first man/suspect by T. and the medium-sized man by Paula. Similarly, because neither Keys nor Jones was the smaller “skinny” intruder and because another male was identified as the smaller assailant, the record supports the conclusion that Keys was the second man/suspect or the large assailant.

Id. at *2.

The evidence concerning the third, smaller intruder included testimony that he entered the women's apartment and handed a gun to Keys that Keys used to threaten the women. He also accompanied Keys into Paula's bedroom to look for valuables. Id. at *3. After T. screamed out a window for help, Jones choked her until the other two men told him to stop. Id. All three perpetrators stayed in the apartment until Paula and T. were tied with cords. When they left together, T. watched through a window and saw them get into the same dark red car. Id. at *3-4. Keys was arrested later that day in possession of the victims' cell phones and other stolen property. Jones wrote a letter found in his jail cell stating that he, “Ping” (Keys), and “Slick” had robbed some women's home. Id. at *4.

After a jury convicted Keys and Jones of crimes related to robbery and sexual assault, Keys was sentenced to “a determinate term of 3 years in state prison plus two consecutive indeterminate terms of 25 years to life.” Jones was sentenced to “a determinate term of 76 years, 4 months in state prison” plus consecutive indeterminate terms as follows: “two life terms with the possibility of parole; three terms of 25 years to life; and one term of 15 years to life.” Id. at *1.

Petitioner chose to enter a “nolo contendere” plea in July 2010 to three charges: two counts of robbery and one count of forced oral copulation. (Dkt. 1 at 2.) Per LASC records, the State dismissed the other charges against Petitioner. He was sentenced to thirty-six years in prison. (Id.) He did not appeal. (Id. at 5.)

II. CLAIMS FOR RELIF

Petitioner seeks federal habeas relief on two grounds: (1) ineffective assistance of counsel (“IAC”) and (2) insufficiency of the evidence to support a conviction. (Id. at 3-4.) Petitioner contends that counsel's deficit performance “doomed” any possibility for an acquittal at trial, forcing him to plead guilty. (Id.) He believes that his conviction for “crimes far in excess of errant juvenile delinquency is outrageous.” (Id. at 21.)

“[C]laims of pre-plea ineffective assistance of counsel are cognizable on federal habeas review when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead.” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017) (allowing IAC claim based on counsel's failure to file a motion to suppress). As the factual basis for his IAC claim, Petitioner alleges that counsel failed to (1) advise him of the adverse effects of waiving his speedy trial rights as a juvenile; (2) advise him of the availability of a juvenile life sentence^[3]; (3) move to suppress his coerced statements; (4) obtain discovery beyond the prosecutor's file; (5) provide any “defense strategy or theory;” (6) interview exculpatory witnesses or investigate; (7) “present any adversarial testing of the prosecutor's case”; and (8) advocate for Petitioner, because he was prejudiced against him due to Petitioner's gang membership and juvenile criminal record. (Dkt. 1 at 3.)

Regarding his second claim, the Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Here, Petitioner argues that the victims could not identify him as the third perpetrator and there was no DNA evidence placing him at the scene. (Dkt. 1 at 4.) Petitioner, however, was convicted based on his plea, not a jury verdict. Petitioner, therefore, cannot bring this kind of due process claim. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (“he pleaded guilty to the offense and therefore cannot claim that the prosecution's evidence was insufficient”); Martin v. Dexter, No. EDCV 08-00693-DOC (MLG), 2008 WL 4381519, at *7 (C.D. Cal. Sept. 23, 2008) (“By pleading guilty . . . Petitioner effectively waived any claim that his constitutional rights were violated as to pretrial matters, which includes a challenge to the sufficiency of the evidence.” (citing Tollett)).

III. STATUTE OF LIMITATIONS DISCUSSION

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Under this rule, district courts may “consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 202 (2006). “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Id.

A. One-Year Statute of Limitations.

1. Legal Standard.

This action is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which provides as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(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;

(B) the date on which the impediment to

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