1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WENDY HEATHER DOWNS, Case No. 22-cv-2073-MMA (DDL)

12 Petitioner, ORDER RE: PETITIONER’S 13 v. OBJECTIONS;

14 KATHLEEN ALLISON, Secretary of [Doc. No. 11] California Department of Corrections and 15 MODIFYING AND ADOPTING Rehabilitation, et al.,

REPORT AND

16 Respondents. RECOMMENDATION AS 17 MODIFIED;

18 [Doc. No. 10] 19

GRANTING MOTION TO DISMISS

20 AND DISMISSING PETITION WITH PREJUDICE; and 21

22 [Doc. No. 1]

23 DECLINING TO ISSUE A

CERTIFICATE OF

24

APPEALABILITY

25 26 On December 30, 2022, Wendy Downs (“Petitioner”), proceeding pro se, filed a 27 habeas corpus petition pursuant to 28 U.S.C. § 2254 (the “Petition”). See Doc. No. 1. 28 Respondents filed a motion to dismiss the Petition on March 3, 2023, and Petitioner filed 1 an opposition to the motion on March 29, 2023. See Doc. Nos. 6–7. On May 23, 2023, 2 Magistrate Judge David D. Leshner issued a well-reasoned Report and Recommendation 3 (“R&R”), recommending that the Court grant the motion to dismiss the Petition. See 4 Doc. No. 10.1 Petitioner filed objections to the R&R on June 5, 2023. See Doc. No. 11. 5 Respondents did not file a reply. Upon due consideration and for the reasons set forth 6 below, the Court SUSTAINS Petitioner’s objection to the R&R’s statement regarding her 7 probation, OVERRULES Petitioner’s remaining objections, MODIFIES the R&R and 8 ADOPTS it as modified, GRANTS the motion to dismiss the Petition, DISMISSES the 9 petition with prejudice, and DECLINES to issue a certificate of appealability. 10 I. FACTUAL AND PROCEDURAL BACKGROUND 11 Judge Leshner’s R&R includes the relevant factual and procedural background of 12 Petitioner’s case. Doc. No. 10 at 3–4. The R&R states that a California Highway Patrol 13 officer saw Petitioner driving at about 110 miles per hour on highway 8. Id. at 3. The 14 officer stopped Petitioner and had her perform some field sobriety tests. Id. He then 15 arrested Petitioner on suspicion of driving under the influence. Id. A blood test showed 16 Petitioner was under the influence of methamphetamine. Id. 17 Following a trial, Petitioner was convicted of driving under the influence and she 18 admitted suffering a prior conviction for driving under the influence within the preceding 19 ten years. Id. The trial judge later found her guilty of an infraction for driving in excess 20 of 100 miles per hour. Id. Petitioner was sentenced to nine days in jail and placed on 21 five years of probation. Id. She was also assessed a fine and had her driver’s license 22 suspended. Id. 23 Petitioner appealed her conviction to the Appellate Division of the San Diego 24 Superior Court, which affirmed her conviction on October 2, 2020. See Doc. No. 1 at 2; 25 Doc. No. 10 at 3; Doc. No. 1-15, 137–40, 149–56. The Clerk of the Appellate Division 26 27 28 1 filed the remittitur on November 3, 2020 stating the decision was final. See Doc. No. 1- 2 15 at 135–36. Petitioner then filed habeas corpus petitions in the San Diego Superior 3 Court, the California Court of Appeal, and the California Supreme Court. See Doc. No. 1 4 at 3–4; Doc No. 1-17 at 17–88, 163–252; Doc. No. 1-18 at 17–56. All three courts 5 denied the petitions. See Doc. No. 1 at 3–4; Doc. No. 1-17 at 150–59, 267–69; Doc. No. 6 1-18 at 178. 7 Petitioner objects to the factual background as recited in the R&R. Doc. No. 11-1 8 at 12–13. The California Court of Appeal’s statement of facts, however, to which this 9 Court must defer under 28 U.S.C. § 2254(e)(1), states as follows: 10 At trial, a law enforcement officer testified that while working a routine freeway patrol at night, he stopped Downs after observing her 11 driving approximately 110 miles per hour. Based on her appearance and 12 performance on a series of field sobriety tests, the officer arrested Downs on suspicion of driving under the influence. Subsequent blood testing revealed 13 Downs was under the influence of methamphetamine. 14 15 Doc. No. 1-8 at 63. 16 The R&R accurately reflects the facts as recounted by the state appellate court. 17 Petitioner’s objection is therefore OVERRULED and the Court ADOPTS the R&R’s 18 factual and procedural background. 19 The R&R notes Petitioner’s appellate attorney submitted a brief pursuant to People 20 v. Wende, 25 Cal.3d 436 (1979). Doc. No. 10 at 3. Petitioner objects to the R&R’s 21 omission of a citation to Anders v. California, 386 U.S. 738 (1967), which appellate 22 counsel also referred to in his opening brief. Doc. No. 11-1 at 13; Doc. No. 1-15 at 155. 23 Under Wende, an attorney may submit an appellate brief notifying the court that he has 24 reviewed the record and has identified no arguable issues for review. Wende, 25 Cal. 3d 25 at 441–43. The court must then review the record to determine whether there is any basis 26 upon which to grant relief. Id. Anders is simply the United States Supreme Court case 27 upon which Wende is based. See Wende, 25 Cal. 3d at 441–42. Because the addition of a 28 / / / 1 citation to Anders is unnecessary and would add nothing to the R&R’s analysis, the Court 2 OVERRULES this objection. 3 In the habeas corpus petition she filed in this Court on December 30, 2022, 4 Petitioner argues: (1) her Sixth Amendment right to competent trial and appellate counsel 5 was violated; (2) her due process right to a fair trial was violated when the prosecutor 6 committed errors at trial; (3) her right to an impartial jury was violated by juror bias; (4) 7 her First Amendment right to access the courts was violated by Covid-19 closures; (5) the 8 cumulative effect of all the errors rendered her trial unfair; and (6) she was not provided 9 with a fair habeas corpus proceeding in state court. See Doc. No. 1. Judge Leshner 10 concluded the petition is untimely and recommends the Court grant the motion to dismiss 11 and dismiss the petition with prejudice. See Doc. No. 10. Petitioner objects to the R&R 12 on several grounds. See Doc. No. 11.2 13 II. LEGAL STANDARD 14 A district court has jurisdiction to review a magistrate judge’s report and 15 recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). Pursuant to Local 16 Rule 72 and 28 U.S.C. § 636(b)(1), the Court must make a de novo determination of any 17 part of the magistrate judge’s disposition to which a party has properly objected. See id.; 18 see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 19 The Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 21 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 22 / / / 23 / / / 24 25 2 Petitioner objects to the R&R only citing to Local Rule 72.2.d and requests that the R&R “additionally 26 adhere to Civil Local Rule 72.1.d.” Doc. No. 11-1 at 11. Local Rule 72.1.d provides that all cases filed pursuant to 28 U.S.C. § 2254 which do not involve the death penalty are referred to the Magistrate Judge 27 for preparation of an R&R. See Civil Local Rule 72.1.d. As Judge Leshner has prepared an R&R in this case, it is clear the provisions of Local Rule 72.1.d have been complied with in this case and therefore 28 1 III. DISCUSSION 2 Pursuant to 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus if 3 a petitioner’s state court conviction violates the Constitution or the laws or treaties of the 4 United States. See 28 U.S.C. § 2254. 5 A. Petitioner’s Probation Status 6 Petitioner objects to the R&R’s statement that she is on supervised probation, see 7 Doc. No. 10 at 1, and states that she is actually on summary probation. Doc. No. 11-1 at 8 11. According to the transcript of Petitioner’s sentencing proceeding, the trial judge 9 sentenced her to summary probation. Doc. 1-15 at 108. Therefore, the Court SUSTAINS 10 the objection and MODIFIES the R&R to reflect Petitioner was placed on five years of 11 summary probation. 12 B. Description of Grounds for Relief and Omitted Reference to Doc. No. 8 13 Petitioner objects to the R&R’s description of her grounds for relief because it does 14 not include all the Constitutional amendments she references in her Petition. Doc. No. 11- 15 1 at 11. The Court has reviewed the petition in this case and concludes the R&R 16 accurately summarizes Petitioner’s claims even though it may not list every 17 Constitutional provision Petitioner invoked. Moreover, because the R&R does not 18 address the merits of Petitioner’s claims, the R&R’s statement of grounds for relief has 19 no bearing on the R&R’s conclusions. Petitioner also objects to the R&R’s failure to 20 mention the Magistrate Judge’s April 26, 2023 Order directing Respondent to reply to 21 Petitioner’s opposition to the motion to dismiss. Doc. No. 11-1 at 11. It is not clear why 22 Petitioner objects to this omission, but, as with her objection to the R&R’s description of 23 the Constitutional basis for her claims, the omission has no effect on Judge Leshner’s 24 conclusions. Accordingly, the Court OVERRULES these objections. 25 / / / 26 / / / 27 / / / 28 / / / 1 C. Commencement of the Statute of Limitations 2 The R&R correctly states that the one year statute of limitations imposed on 3 federal habeas corpus petitions is codified in 28 U.S.C. § 2244(d)(1). Doc. No. 10 at 5. 4 The limitation period begins to run “from the latest of” the following: 5 (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; 6

7 (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 8 removed, if the applicant was prevented from filing by such State action; 9 (C) the date on which the constitutional right asserted was initially 10 recognized by the Supreme Court, if the right has been newly recognized by 11 the Supreme Court and made retroactively applicable to cases on collateral review; or 12

13 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 14

15 28 U.S.C. § 2244(d)(1). 16 In Petitioner’s case, subsections (A), (B), and (D) are relevant, as Petitioner does 17 not base her claims on any new constitutional right recognized by the Supreme Court. 18 Petitioner objects to the R&R’s conclusion that her conviction became final, and 19 the statute of limitations clock pursuant to 28 U.S.C. § 2224(d)(1)(A) began ticking, on 20 November 4, 2020, the day after the remittitur confirming the Appellate Division of the 21 Superior Court’s decision was filed. Doc. No. 11-1 at 16–17, 20. The Ninth Circuit has 22 stated that a district court must “look to California law to determine when direct review 23 of a California misdemeanor conviction concludes.” McMonagle v. Meyer, 802 F.3d 24 1093, 1095 (9th Cir. 2015). The R&R correctly found that the California Rules of Court 25 provide that after conviction, a defendant must appeal to the Appellate Division of the 26 Superior Court. Id. at 1097; Doc. No. 10 at 6. Upon a denial by the Appellate Division, 27 a defendant may next ask the Appellate Division to certify the case to the California 28 Court of Appeal. McMonagle, 802 F.3d at 1097; Doc. No. 10 at 6. If the Appellate 1 Division declines to certify the case, the defendant may then ask the California Court of 2 Appeal to accept transfer of the case. McMonagle, 802 F.3d at 1097; Doc. No. 10 at 6. 3 The California Court of Appeal may also transfer the case on its own motion. Cal. R. Ct. 4 8.1002(3); Doc. No. 10 at 6. Direct review of the conviction concludes immediately 5 upon denial of transfer by the California Court of Appeal, and “no further appeal to the 6 California Supreme Court is available.” McMonagle, 802 F.3d at 1097; see Doc. No. 10 7 at 6. 8 Although Petitioner appealed her conviction to the Appellate Division of the 9 Superior Court, there is no evidence she asked the Appellate Division to certify the case 10 to the California Court of Appeal, nor that she asked the California Court of Appeal to 11 accept transfer of the case. Under California Rules of Court 8.888(a)(1) Petitioner’s 12 conviction therefore became final “30 days after the decision is sent by the court clerk to 13 the parties.” Cal. R. Ct. 8.888(a)(1). Accordingly, as the R&R correctly concluded, the 14 decision affirming the superior court’s judgment was filed on October 2, 2020, and thirty 15 days later, on November 3, 2020, the decision became final.3 16 Normally, the statute of limitations does not begin to run for a federal habeas 17 petitioner until the ninety-day period for seeking review in the United States Supreme 18 Court has elapsed. See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999). Here, 19 however, the R&R correctly found Petitioner was not entitled to the ninety days within 20 which she could file a petition for writ of certiorari to the United States Supreme Court 21 because the Appellate Division’s decision was not a judgment of last resort and the 22 Supreme Court would have lacked jurisdiction to hear such a case. See Gonzalez v. 23 Thaler, 565 U.S. 134, 154 (2012) (concluding petitioner was not entitled to the ninety- 24 day period within which he could have filed a petition for writ of certiorari with the 25 26

27 3 The R&R correctly notes that although the decision was sent to the parties on November 2, 2020, the 28 1 United States Supreme Court because the petitioner had not sought review from the 2 highest possible state tribunal). 3 Petitioner also objects to the R&R’s conclusion that the statute of limitations 4 started on November 4, 2020 on three other grounds. First, she appears to argue the 5 conviction did not become final until the stay on the execution of her sentence was lifted, 6 citing California Rules of Court 8.311(a)(1). Doc. No. 11-1 at 16–17. Rule 8.311(a)(1) 7 applies to criminal appeals from the superior court to the California Court of Appeal, not 8 appeals to the Appellate Division of the Superior Court, which operate under separate 9 rules. See Rule 8.800(a). Moreover, a stay of execution of sentence is not part of the 10 direct review process and therefore, contrary to Petitioner’s assertion, her case was not 11 ongoing between October 2, 2020 when the Appellate Division affirmed her conviction 12 until April 19, 2021 when the stay was lifted. See Doc. No. 11-1 at 16–17. 13 Second, she argues the closures of the county library and the courts due to the 14 Covid-19 pandemic was a state-created “impediment to filing,” which should trigger a 15 later start date for the statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(B). Id. at 16 17. Section 2244(d)(1)(B) imposes the additional requirement, however, that the 17 impediment be “in violation of the Constitution of the United States or laws of the United 18 States.” Id. The closures of the county library and the courts do not meet this 19 requirement. Further, “[t]o obtain relief under § 2244(d)(1)(B), the petitioner must show 20 a causal connection between the unlawful impediment and his failure to file a timely 21 habeas petition.” Bryant v. Arizona, 499 F.3d 1056, 1060 (9th Cir. 2007); Randle v. 22 Crawford, 604 F.3d 1047, 1055 (9th Cir. 2010). According to Petitioner, the San Diego 23 County library partially reopened in October of 2020 and expanded access in June of 24 2021, giving her a minimum of four months and up to eleven months to prepare her 25 federal habeas corpus petition before the statute of limitations expired. See Doc. No. 7-1 26 at 10–11, 14; Doc. No. 11-1 at 25. As the R&R also noted, the San Diego Superior Court 27 reopened for limited in-person services on May 26, 2020 and Petitioner states she had 28 numerous contacts with the court and appeared at four court dates between November 4, 1 2020 when the statute of limitations began running and November 4, 2021 when it 2 expired. See Doc. No. 10 at 10; Doc. No. 11-1 at 24–25. Therefore, she has not 3 established the necessary causal relationship between the closures and her failure to file 4 her petition in this Court before the statute of limitations expired. 5 Third, she contends a different start date should apply pursuant to 28 U.S.C. 6 § 2244(d)(1)(D) because she was not aware of the factual predicate of her ineffective 7 assistance of counsel claims before the statute of limitations expired. Doc. No. 11-1 at 8 17. Specifically, she objects to the R&R’s failure to consider that she did not have access 9 to her case file until December 2, 2021. Id. Petitioner raised the following claims in her 10 petition: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, 11 prosecutorial errors at trial, a violation of her right to an impartial jury, a violation of her 12 access to the court system due to Covid-19 restrictions, and a denial of access to state 13 habeas corpus proceedings. See Doc. No. at 6–9, 24–65. All of these alleged violations 14 occurred during her trial and appeal, and therefore Petitioner should have been aware, 15 through the exercise of due diligence, of the factual predicate for all of her claims no later 16 than November 3, 2020 when the Appellate Division denied her appeal. 17 For the foregoing reasons, the Court OVERRULES Petitioner’s objections to the 18 start date for the statute of limitations under 28 U.S.C. § 2244(d)(1) and ADOPTS the 19 R&R’s conclusion that the statute of limitations began to run on November 4, 2020. 20 D. Statutory Tolling 21 The R&R correctly states that AEDPA’s statute of limitations is subject to 22 statutory tolling for the time during which a “properly filed application for State post- 23 conviction or other collateral review with respect to the pertinent judgment or claim is 24 pending. . . .” Doc. No. 10 at 8 (citing 28 U.S.C. § 2244(d)(2). Petitioner asserts the 25 R&R incorrectly found the stay of her sentence did not qualify as a “properly filed 26 application for State post-conviction or other collateral review” under § 2244(d)(2). Doc. 27 No. 11-1 at 18–21. “Collateral review” is defined as “a form of review that is not part of 28 the direct appeal process.” Wall v. Kholi, 562 U.S. 545, 552 (2011). The Ninth Circuit 1 has applied a three factor test to determine whether a proceeding is a “part of the direct 2 appeal process” or is instead a form of collateral review. Barnham v. Montana, 996 F.3d 3 959, 964 (9th Cir. 2021). The first factor to consider is “how the proceeding is 4 characterized under state law.” Id. Second, a court should consider the timing of the 5 proceeding; a collateral proceeding “necessarily follows direct review.” Id. at 964–65 6 (quoting Lopez v. Wilson, 426 F.3d 339, 351 (6th Cir. 2005)). Third, a court should 7 consider whether the proceeding “takes the place of an appeal in the State’s system.” Id. 8 at 965. 9 In California, a stay of a sentence usually occurs in one of two ways, either as part 10 of the sentencing phase of a criminal proceeding when a state court judge stays a 11 sentence pursuant to Penal Code § 654’s prohibition against multiple punishments, or as 12 appears to be the case here, when a judge agrees to stay the execution of a defendant’s 13 sentence pending an appeal. See Doc. No. 1-6 at 89–91. In either case, a stay of sentence 14 is not “part of the direct appeal process,” is not a proceeding that “follows direct review,” 15 nor does it “take[] the place of an appeal in the State’s system.” Barnham, 996 F.3d at 16 964. Because Petitioner’s first collateral review filing was the habeas corpus petition she 17 filed in the San Diego Superior Court on April 8, 2022, 155 days after the federal statute 18 of limitations had expired, no statutory tolling is available. Ferguson v. Palmateer, 321 19 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 20 Accordingly, Petitioner’s objection to the R&R’s determination that she is not entitled to 21 any statutory tolling is OVERRULED. 22 E. Equitable Tolling 23 Petitioner also objects to the R&R’s conclusion that she is not entitled to any 24 equitable tolling. Doc. No. 11-1 at 21–28. The R&R correctly states that equitable 25 tolling is available only when “external forces, rather than a petitioner’s lack of diligence, 26 account for the failure to file a timely claim . . . .” Doc. No. 10 at 9 (citing McMonagle, 27 802 F.3d at 1099). A petitioner must show both diligence and that “extraordinary 28 circumstances stood in his way and prevented timely filing.” Id. at 10 (citing Holland v. 1 Florida, 560 U.S. 631, 649 (2010)). Petitioner asserts she is entitled to equitable tolling 2 because her appellate attorney lost her file and did not provide her with the brief he filed 3 or the appellate record, which prevented her from filing a supplemental brief. Doc. No. 4 11-1 at 15. Although egregious attorney misconduct, such as abandoning or lying to a 5 client can constitute extraordinary circumstances sufficient to warrant equitable tolling, 6 ordinary or “garden variety” negligence, such as missing a filing deadline or poor 7 communication, generally does not. See, e.g. Holland v. Florida, 560 U.S. 631, 651–52 8 (2010). The allegations Petitioner makes regarding her attorney do not rise to the level of 9 “egregious misconduct.” 10 Petitioner also argues she is entitled to equitable tolling because she did not have 11 sufficient access to a law library or the courts due to Covid-19 restrictions. Doc. No. 11- 12 1 at 23–27. As the R&R correctly points out, lack of access to legal assistance does not 13 constitute an “extraordinary circumstance” sufficient to entitle a petitioner to equitable 14 tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). In any event, 15 Petitioner’s own documents show the Point Loma library was open Monday and Tuesday 16 11:30 a.m. to 8 p.m., and Wednesday through Saturday 9:30 a.m. to 6:00 p.m. by July 31, 17 2021, and the downtown library was open Monday through Thursday, 9 a.m. to 3 p.m., 18 without an appointment by June 15, 2021. Doc. No. 7-2 at 7, 12. Thus, Petitioner had 19 sufficient access to legal materials at least four months before the statute of limitations 20 expired on November 4, 2021. Moreover, as the R&R correctly notes and Petitioner 21 concedes, the San Diego Superior Court reopened for limited services on May 26, 2020, 22 and Petitioner availed herself of court services numerous times between November 4, 23 2020 and November 4, 2021. Doc. No. 10 at 10; Doc. No. 11-1 at 7-1 at 10–14. Further, 24 as the R&R correctly found, Petitioner has not established the diligence required for 25 equitable tolling because she did not begin the exhaustion process in state court until 26 April 8, 2022 when she filed her first habeas corpus petition, nearly a year and a half after 27 her conviction became final and five months after the statute of limitations had expired. 28 / / / 1 Doc. No. 1-17 at 17-87. Accordingly, Petitioner’s objection to the R&R’s finding 2 ||regarding equitable tolling is OVERRULED. 3 IV. CERTIFICATE OF APPEALABILITY 4 The federal rules governing habeas cases brought by state prisoners require a 5 || district court that dismisses or denies a habeas petition to grant or deny a certificate of 6 || appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. 7 || § 2254. A certificate of appealability is not issued unless there is “a substantial showing 8 || of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a 9 || petitioner must show that reasonable jurists could debate whether the petition should have 10 || been resolved in a different manner or that the issues presented were adequate to deserve 11 encouragement to proceed further. Miller—El v. Cockrell, 537 U.S. 322, 336 (2003) 12 || (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the reasons set forth in the 13 ||R&R and incorporated herein, the Court finds that this standard has not been met and 14 || therefore DECLINES to issue a certificate of appealability. 15 V. CONCLUSION 16 For the foregoing reasons, the Court SUSTAINS Petitioner’s objection regarding 17 probation and MODIFIES the R&R to state she was sentenced to summary 18 || probation. The Court OVERRULES Petitioner’s remaining objections, ADOPTS Judge 19 Leshner’s R&R as modified, DENIES the Petition, and DECLINES to issue a certificate 20 || of appealability. 21 IT IS SO ORDERED. 22 DATED: January 12, 2024 UM 74 United States District Judge 25 26 27 28