Mendoza v. Pollard

ROBERT A. MENDOZA, Petitioner, v. M. POLLARD, Warden, Respondent.

Case No.: 20cv0847-GPC(RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 24, 2021

ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS PETITION AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

[ECF Nos. 12, 16.]

Petitioner Roberto Angel Mendoza ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus and First Amended Petition for Writ of Habeas Corpus (collectively "Petition") pursuant to 28 U.S.C. § 2254 on May 1, 2020 and July 18, 2020¹, respectively. (ECF Nos. 1, 25.) Petitioner also filed a motion for partial summary judgment. (ECF No. 12.) Respondent Marcus Pollard, the Warden, ("Respondent") filed a motion to dismiss the Petition, (ECF No. 16), and an opposition toPetitioner's motion for partial summary judgment. (ECF No. 18.) Petitioner filed an opposition to Respondent's motion to dismiss. (ECF No. 26.) Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report") recommending the Court grant Respondent's motion to dismiss and deny Petitioner's motion for partial summary judgment. (ECF No. 28.) Petitioner filed an objection to the Magistrate Judge's Report. (ECF No. 34.) After a thorough review of the issues and for the reasons set forth below, this Court ADOPTS the Magistrate Judge's Report and GRANTS Respondent's motion to dismiss and DENIES Petitioner's motion for partial summary judgment.

I. Factual Background

On January 20, 2016, a jury found Petitioner guilty of two counts of oral copulation with a child ten years old or younger in violation of California Penal Code ("Penal Code") section 288.7(b), two counts of sexual penetration with a child ten years old or younger in violation of Penal Code section 288.7(b), and nine counts of lewd acts upon a child in violation of Penal Code section 288(a), six of which included special allegations of substantial sexual conduct with a child under fourteen years of age under Penal Code section 1203.066(a)(8). (ECF No. 17-1, Lodgment No. 1 at 187-99.²) The trial court sentenced Petitioner to thirty years to life in state prison. (Id. at 201.)

II. Procedural Background

A. Direct Appeal

On March 29, 2016, Petitioner appealed his conviction to the California Court of Appeal. (Id. at 153.) On February 28, 2017, the California Court of Appeal remanded the matter to the trial court with direction to correct or amend the abstract of judgment but affirmed the judgment in all other respects. (ECF No. 17-2, Lodgment No. 2 at 16-17.) On March 28, 2017, Petitioner filed a petition for review with the California Supreme Court. (ECF No. 17-3, Lodgment No. 3.) On May 10, 2017, the Supreme Court of California denied the petition for review without comment. (ECF No. 17-4,Lodgment No. 4.)

B. State Habeas Corpus Proceedings

On July 12, 2019,³ Petitioner filed a petition for writ of habeas corpus with the San Diego Superior Court. (ECF No. 17-5, Lodgment No. 5.) Three days later, on July 15, 2019, Petitioner filed an identical habeas petition containing the same case number but did not include the additional "memorandum in support of petition for habeas corpus" that accompanied the first petition. (ECF No. 17-6, Lodgment No. 6; see also ECF No. 17-8, Lodgment No. 8 at 3.) On August 15, 2019, Petitioner again filed an identical habeas petition which was not assigned a case number. (ECF No. 17-7, Lodgment No. 7.) The San Diego County Superior Court denied the three petitions and all related filings on August 20, 2019. (ECF No. 17-8, Lodgment No. 8.)

On or around September 29, 2019, Petitioner filed a habeas petition in the California Court of Appeal. (ECF No. 17-9, Lodgment No. 9 at 23.) On October 8, 2019, the California Court of Appeal denied this petition as untimely and for other procedural reasons. (ECF No. 17-10, Lodgment No. 10.) On October 30, 2019, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (ECF No. 17-11, Lodgment No. 11.) The California Supreme Court denied the petition without comment on April 1, 2020. (ECF No. 17-12, Lodgment No. 12.)

The instant Petition was filed in this Court on May 1, 2020. (ECF No. 1.) On September 2, 2020 Petitioner filed the instant motion for partial summary judgment as to the claims set forth in ground two of his Petition. (ECF No. 12.) On September 21, 2020, Respondent filed both a motion to dismiss the Petition as untimely, and an opposition to Petitioner's motion for partial summary judgment. (ECF Nos. 16, 18.) On September 22, 2020, the Court received Petitioner's motion for leave to file a FirstAmended Petition. (ECF No. 20.) On October 7, 2020, Respondent filed a non-opposition to the motion and a request to have the motion to dismiss (ECF No. 16) be applied to the First Amended Petition. (ECF No. 23.) On July 18, 2020, Petitioner filed a First Amended Petition asserting the same four grounds for relief as the original Petition. (ECF No. 25 at 56-73.) On October 15, and 21, 2020, Petitioner filed an opposition to Respondent's motion to dismiss and a reply brief in support of his motion for partial summary judgment, respectively. (ECF Nos. 26, 27.)

On January 5, 2021, Magistrate Judge Ruben B. Brooks issued a report and recommendation ("Report"), advising the Court to grant Respondent's motion to dismiss, and to deny Petitioner's motion for partial summary judgment. (ECF No. 28.) On March 18, 2021, Petitioner filed an objection to the Report. (ECF No. 34.)

III. Standard of Review of Report and Recommendation

The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If objections are made, the Court reviews the magistrate judge's findings and recommendations de novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). The district court need not review de novo those portions of a Report to which neither party objects. Reyna-Tapia, 328 F.3d at 1121-22. Petitioner filed an Objection on March 22, 2021; however, the Objection does not address any arguments raised in the Report. (ECF No. 34.) Petitioner merely attaches two copies of his habeas petition filed with the California Supreme Court. (Id.) Nonetheless, the Court conducts a de novo review of the findings and recommendations of the Magistrate Judge.

IV. Respondent's Motion to Dismiss

A. Statute of Limitations Under AEDPA

Respondent moves to dismiss the Petition on the ground that it is time-barredpursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (ECF No. 16 at 3-7.) Respondent argues that Petitioner's case became final on August 8, 2017, and contends that, without tolling, the limitations period expired on August 8, 2018. (Id. at 3-4 (citing Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).) Asserting that the Petition was signed on May 1, 2020, Respondent reasons that without statutory or equitable tolling, it is untimely. (Id. at 4.)

The Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA") imposes a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). A petition for writ of habeas corpus may be dismissed with prejudice when it is not filed within AEDPA's one-year statute of limitations. See Jimenez v. Rice, 276 F.3d 478, 483 (9th Cir. 2001). The statute of limitations is a threshold issue that must be resolved before the merits of individual claims. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).

The limitations period runs 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 filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). Respondent alleges that the Petition is barred based on 28 U.S.C. § 2244(d)(2)(A), the date on which the judgment of conviction becomes final by the conclusion of direct review. When a habeas petitioner seeks direct review by the state's highest court but does not file a petition with the United States Supreme Court, the judgment becomes final when the prisoner's time to petition the Supreme Court expires. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). According to United StatesSupreme Court Rule 13, a petition for writ of certiorari must be filed within ninety days of the entry of an order denying discretionary review by the state supreme court. Sup. Ct. R. 13.

Here, the California Supreme Court denied his petition for review on May 10, 2017. (ECF No. 17-4, Lodgment No. 4.) Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Therefore, Petitioner's judgment became final for the purposes of AEDPA on August 8, 2017, ninety days after the California Supreme Court denied his petition for review. Pursuant to § 2244(d), the statute of limitations for federal habeas corpus relief began to run on August 9, 2017, the day after the judgment became final. See 28 U.S.C. § 2244(d)(1)(A); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (explaining that the one-year statute...