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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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10 EDWARD YOUNGHOON SHIN, ) Case No. 8:22-cv-01850-CAS-DFM 11 ) ) 12 Plaintiff, ) ORDER ACCEPTING FINDINGS ) ) AND RECOMMENDATIONS OF 13 v. ) UNITED STATES MAGISTRATE ) 14 ) JUDGE STEVE SMITH, Acting Warden, ) 15 ) ) 16 Defendant. ) ) 17 ) 18 19 I. INTRODUCTION 20 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 21 Habeas Corpus (dkt. 1), the Proposed First Amended Petition (dkt. 15-2, “PFAP”), 22 all of the records herein, the Report and Recommendation of United States 23 Magistrate Judge (dkt. 20, the “Report”), and the Objections to the Magistrate 24 Judge’s Report and Recommendation (dkt. 23, the “Objections” or “Obj.”). 25 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has 26 conducted a de novo review of those portions of the Report to which objections 27 1 have been stated. Having completed its review, the Court accepts the findings and 2 recommendations set forth in the Report. 3 II. BACKGROUND 4 On December 7, 2018, petitioner Edward Younghoon Shin (“Petitioner”) 5 was convicted by an Orange County Superior Court jury of first degree-murder, 6 committed for financial gain. Dkt. 9-1. Petitioner was sentenced to life in prison 7 without the possibility of parole. Dkt. 9-2. 8 Petitioner appealed his conviction to the California Court of Appeal. Dkt. 9- 9 3. Petitioner’s appeal raised the PFAP’s first four grounds for relief, alleging that 10 Petitioner was denied his constitutional due process rights under the Fifth, Sixth, 11 and Fourteenth Amendments because: (1) the trial court erroneously admitted 12 prejudicial hearsay and inflammatory emails; (2) the prosecutor committed 13 misconduct during his cross-examination of Petitioner and counsel was ineffective 14 for failing to object; (3) the above errors cumulatively created a prejudicial effect; 15 and (4) the trial court erred in denying his post-verdict motions to continue and for 16 a new trial. Dkt. 9-3; PFAP ¶¶ 16-31. On April 14, 2021, the California Court of 17 Appeal affirmed the trial court’s judgment. Dkt. 9-6 at 41. The California 18 Supreme Court denied review on July 14, 2021. Dkts. 9-7, 9-8. 19 On October 7, 2022, Petitioner filed his initial Petition for Writ of Habeas 20 Corpus (“federal Petition”), raising the four claims that he brought on direct appeal 21 as well as a fifth claim for ineffective assistance of counsel. Dkt. 1 ¶¶ 13-32. 22 Petitioner concurrently filed a motion to stay the federal Petition pursuant to Kelly 23 v. Small, 315 F.3d 1063, 1071 (9th Cir. 2003), overruled on other grounds by 24 Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), to allow him to exhaust his fifth 25 claim. Dkt. 3. On or around October 14, 2022, Petitioner filed a habeas corpus 26 petition in the Orange County Superior Court (“state Petition”), raising his fifth 27 1 claim. Dkt. 14-1 at 58-173. On December 12, 2022, the Orange County Superior 2 Court denied the state Petition as untimely and meritless. See id. at 187-91. 3 On January 25, 2023, the Honorable Magistrate Judge Douglas F. 4 McCormick granted the Kelly stay, dismissing the unexhausted fifth claim from 5 the federal Petition and staying the remaining claims. Dkt. 11 at 4. Petitioner’s 6 state Petition was subsequently denied by the California Court of Appeal and the 7 California Supreme Court. PFAP ¶¶ 13-14. 8 On January 29, 2024, Petitioner filed the instant motion to amend his federal 9 Petition to add the now-exhausted fifth claim, attaching his PFAP. Dkt. 15. On 10 May 9, 2024, Magistrate Judge McCormick issued a Report and Recommendation, 11 recommending that the Court deny Petitioner’s motion. Dkt. 20. On June 24, 12 2024, Petitioner filed his Objections. Dkt. 23. 13 III. LEGAL STANDARD 14 28 U.S.C. § 2242 provides that habeas corpus applications “may be amended 15 or supplemented as provided in the rules of procedure applicable to civil actions.” 16 Similarly, Rule 11 of the Rules Governing § 2254 Cases provides that “[t]he 17 Federal Rules of Civil Procedure, to the extent that they are not inconsistent with 18 these rules, may be applied, when appropriate, to the petitions filed under these 19 rules.” Accordingly, the amendment of a federal habeas petition is governed by 20 Rule 15 of the Federal Rules of Civil Procedure. Under Rule 15(a), after a 21 responsive pleading has been filed, amendment is permitted “by leave of court or 22 by written consent of the adverse party; and leave shall be freely given when 23 justice so requires.” Fed. R. Civ. P. 15(a). The decision whether to grant leave to 24 amend “is entrusted to the sound discretion of the trial court.” Jordan v. County of 25 Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 26 U.S. 810 (1982). “Five factors are taken into account to assess the propriety of a 27 motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, 1 futility of amendment, and whether the plaintiff has previously amended the 2 complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citing 3 Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). 4 IV. DISCUSSION 5 Petitioner argues that the motion to amend his federal Petition should be 6 granted because (1) his fifth claim was timely filed, given statutory tolling and/or 7 equitable tolling of the one-year statute of limitations under the Antiterrorism and 8 Effective Death Penalty Act of 1996 (“AEDPA”); (2) even if his fifth claim was 9 not timely filed, it relates back to his first four claims; and (3) alternatively, a 10 retroactive stay pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005) is 11 warranted, which would have stayed Petitioner’s fifth claim as of October 7, 2022 12 and satisfied AEDPA’s one-year statute of limitations. Obj. at 2-6. 13 The Court agrees with Magistrate Judge McCormick that Petitioner’s fifth 14 claim is untimely and does not relate back to the original claims. Report at 5-11. 15 Additionally, the Court agrees with Magistrate Judge McCormick that any 16 amendment of the federal Petition to add the fifth claim would be futile. Id. at 11. 17 First, Magistrate Judge McCormick is correct in his analysis that, while 18 AEDPA’s one-year statute of limitations is tolled during the pendency of any 19 “properly filed application for State post-conviction or other collateral review,” see 20 28 U.S.C. § 2244(d)(2), an untimely petition is not “properly filed.” See Bonner v. 21 Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), amended, 439 F.3d 993 (9th Cir. 22 2006) (“Because the California courts dismissed Bonner's petition as untimely, his 23 petition was not “properly filed” under AEDPA. Accordingly, he is not entitled to 24 tolling under § 2244(d)(2).”). Here, the Orange County Superior Court denied 25 “[a]ll of petitioner’s claims and subclaims… as untimely,” see dkt. 14-1 at 187, 26 and Petitioner’s subsequent state petitions, which were denied without comment, 27 1 are presumed to have been denied for the same reason. Accordingly, Petitioner is 2 not entitled to tolling under AEDPA. 3 Petitioner is also not entitled to equitable tolling, which requires “(1) that 4 [Petitioner] has been pursuing his rights diligently, and (2) that some extraordinary 5 circumstance stood in his way.” See Pace v. DiGuglielmo, 544 U.S. 408, 418 6 (2005). Petitioner argues that the denial of statutory tolling constitutes an 7 “extraordinary circumstance.” See Obj. at 6. However, the Court finds that the 8 denial of statutory tolling is not an extraordinary circumstance “beyond a 9 prisoner’s control that ma[de] it impossible to file a petition on time.” See Laws v. 10 Lamarque, 351 F.3d 919, 922 (9th Cir. 2003). Petitioner also argues that his claim 11 for actual innocence should be a “catalyst” for equitable tolling. See Obj. at 6. 12 The Court agrees with Magistrate Judge McCormick that “none of the evidence on 13 which [Petitioner] relies suggests that he is actually innocent,” and, to the contrary, 14 “as the Court of Appeal noted… there was ‘overwhelming evidence of 15 [Petitioner’s] guilt.’” Report at 8. 16 Second, Magistrate Judge McCormick is correct in his analysis that 17 Petitioner’s fifth claim does not “relate back” to his original four claims. This is 18 because the fifth claim, which addresses trial counsel’s allegedly inadequate 19 pretrial investigation and failure to call a forensic accounting expert at trial, is 20 supported by facts that “differ in both time and type” from the original four claims. 21 See Mayle v. Felix, 545 U.S. 644, 650 (2005). The Court agrees with Magistrate 22 Judge McCormick that Petitioner’s first three claims, which deal with the trial 23 court’s admission of evidence and the prosecutor’s alleged misconduct at trial, do 24 not share “a common core of operative facts” with the fifth claim for ineffective 25 assistance of counsel. See id. at 664. The fourth claim shares one fact with the 26 fifth claim: that post-verdict, Petitioner learned that the victim’s brother sold 27 several gold pieces alleged to be in Petitioner’s possession. However, the Court 1 || agrees with Magistrate Judge McCormick that, given that the fifth claim is based 2 several other pieces of unrelated, allegedly exculpatory evidence, the two 3 || claims “do not share a common core of operative facts.” Report at 11. 4 Third, Magistrate Judge McCormick is correct in his analysis that 5 |}amendment to add the fifth claim would be futile because the fifth claim is 6 || procedurally barred. The Court agrees that the Orange County Superior Court, in 7 reviewing Petitioner’s fifth claim, “clearly invoked California’s timeliness 8 || procedural bar” pursuant to Ex parte Dixon, 41 Cal. 2d 756, 758 (1953), which is 9 || an independent and adequate state procedural ground that bars later federal habeas 10 review of a claim on the merits. See Walker v. Martin, 562 U.S. 307, 321 (2011). 11 || The Court further agrees that Petitioner has not demonstrated “cause for the default 12 || and actual prejudice as a result of the alleged violation of federal law, or [] that 13 || failure to consider the claims will result in a fundamental miscarriage of justice.” 14 || See Coleman v. Thompson, 501 U.S. 722, 750 (1991). A retroactive Rhines stay 15 || would be futile for the same reason. 16 Accordingly, the Court finds that Petitioner’s fifth claim is barred under 17 || AEDPA’s statute of limitations and would nevertheless be barred from review on 18 || the merits pursuant to the independent and adequate state ground doctrine. 19 Vv. CONCLUSION 20 Having completed its review, the Court accepts the findings and 21 ||recommendations set forth in the Report. Accordingly, IT IS ORDERED that 22 || Petitioner’s motion to amend his federal Petition is DENIED. 2 Meas A dyke 24 |) Dated: 12/30/2024 25 CHRISTINA A. SNYDER United States District Judge 26 27