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2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 19-8231 RGK (MRW) 13 FREDDY R. JACKSON,

ORDER DISMISSING ACTION

14 Petitioner,

WITH PREJUDICE

15 v. 16 ROBERT NEUSCHMID, Warden, 17 Respondent. 18

19 The Court grants the California Attorney General’s motion to dismiss 20 this habeas corpus action as untimely, Tollett-barred, and unexhausted. 21 28 U.S.C. §§ 2244, 2254. 22 * * * 23 1. In 2016, Petitioner pled guilty to a felony theft charge in 24 Riverside Superior Court. The felony complaint listed five prior robbery 25 and sexual assault “strike” convictions. (Docket # 18-1 at 7.) 26 27 28 1 2. According to the guilty plea form, Petitioner faced a maximum 2 term of 51 years to life in prison. However, under the plea agreement, he 3 received a sentence of five years in custody. (Docket # 18-1 at 15, 79.) 4 3. The trial court sentenced Petitioner in December 2016. 5 Petitioner did not appeal his guilty plea or sentence. Under state court 6 rules, his conviction became final in February 2017. Mendoza v. Carey, 7 449 F.3d 1065, 1067 (9th Cir. 2011); Cal. R. Ct. 8.308(a). 8 4. Petitioner pursued numerous post-conviction habeas actions in 9 the state trial and appellate courts after the entry of judgment. Of note, 10 the Attorney General identified several habeas actions that Petitioner filed 11 and that were pending in the state courts from June 2017 through March 12 2018. (Docket # 17-1 at 8-9, 11.) After those actions, Petitioner did not 13 seek state court habeas relief until August 2019 (a gap of approximately 14 17 months). (Id.) Petitioner did not file any habeas action in the state 15 supreme court. (Id. at 13.) 16 5. Petitioner commenced this habeas action in federal court in 17 September 2019. His petition raised claims under the Fourteenth 18 Amendment alleging that: (a) the prosecutor improperly charged the theft 19 crime as a felony rather than a petty offense; and (b) a previous sexual 20 assault conviction charged as a strike was “false.” (Docket # 1-1 at 3-5.) 21 6. Magistrate Judge Wilner screened the petition pursuant to 22 Habeas Rule 4. Judge Wilner noted timeliness, Tollett-bar, and exhaustion 23 problems with the petition. (Docket # 9.) Petitioner submitted a 24 supplemental statement in response to the screening order, but provided 25 little additional information regarding those defects. (Docket # 11.) 26 7. The Attorney General moved to dismiss the petition on 27 numerous grounds. (Docket # 17.) The gist of Petitioner’s opposition was 28 1 that his appointed defense lawyer failed to investigate his past criminal 2 background (despite the successful presentation of a Romero motion to 3 strike strikes at the time of his plea). (Docket # 27.) 4 * * * 5 8. If it “appears from the application that the applicant or person 6 detained is not entitled” to habeas relief, a court may summarily dismiss a 7 habeas action. 28 U.S.C. § 2243; see also Local Civil Rule 72-3.2 8 (magistrate judge may submit proposed order for summary dismissal to 9 district judge “if it plainly appears from the face of the petition [ ] that the 10 petitioner is not entitled to relief”). 11 9. Statute of Limitations. Under AEDPA, state prisoners have 12 a one-year period within which they must seek federal habeas review of 13 their conviction or sentence. 28 U.S.C. § 2244(d)(1). The AEDPA 14 limitations period is generally triggered when state court appellate review 15 becomes final, or under other specific conditions set forth in the statute. 16 28 U.S.C. § 2244(d)(1)(A-D); Lee v. Lampert, 653 F.3d 929, 933 (9th Cir. 17 2011). 18 10. The AEDPA limitations period can be tolled under the statute. 19 The limitations period is tolled when a prisoner properly files an 20 application for state habeas review (statutory tolling). 28 U.S.C. 21 § 2244(d)(2). A prisoner may also obtain tolling for the period of time 22 between the conclusion of one state habeas proceeding and the initiation of 23 another habeas action (gap tolling). Id. Gap tolling is generally limited to 24 a period of thirty to sixty days (akin to the period of time allowable in other 25 states to file an appeal in a higher court). Evans v. Chavis, 546 U.S. 189, 26 201 (2006); Stewart v. Cate, 757 F.3d 929, 935 (9th Cir. 2014) (same). 27 28 1 11. Habeas actions commenced in state court after the end of the 2 one-year AEDPA limitations period cannot revive an untimely federal 3 petition. Gonzalez v. Thaler, 565 U.S. 134, 149 (2012) (AEDPA clock not 4 “reset” by untimely state collateral actions); Ferguson v. Palmateer, 321 5 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the 6 reinitiation of the limitations period that has ended” before new state 7 habeas petition filed); Wilson v. Sherman, 668 F. App’x 781, 782 (9th Cir. 8 2016) (same). 9 12. The present habeas action is clearly untimely. Petitioner’s 10 conviction became final in February 2017; that started his 12-month 11 AEDPA filing clock. Approximately four months elapsed before Petitioner 12 properly filed post-conviction actions in state court in June 2017. The state 13 acknowledges that Petitioner is entitled to statutory and gap tolling under 14 AEDPA until March 2018. However, Petitioner did not seek further state 15 court habeas review until September 2019. 16 13. Petitioner’s AEDPA deadline expired on October 25, 2018 17 (one year from final conviction (Feb. 2017) plus nearly ten months tolling 18 for state habeas actions). By the time he filed this federal action in 19 late 2019, his AEDPA clock had long since expired. Gonzalez, 565 U.S. 20 at 149. In none of his federal court filings did Petitioner explain the delay 21 in seeking review. (Docket # 1, 11, 27.) The action is time-barred under 22 AEDPA. 28 U.S.C. § 2244. 23 14. Tollett Bar. A defendant who pleads guilty to a criminal 24 charge “may not thereafter raise independent claims relating to the 25 deprivation of constitutional rights” on habeas review. Tollett v. 26 Henderson, 411 U.S. 258, 267 (1973). Habeas relief is not available except 27 when a prisoner attacks “the voluntary and intelligent nature of his guilty 28 1 plea by showing that the advice he received” was unconstitutionally 2 deficient. McMann v. Richardson, 397 U.S. 759, 771 (1970); Lowe v. 3 Johnson, 701 F. App’x 548, 550 (9th Cir. 2017). 4 15. Petitioner’s claims are clearly Tollett-barred. Petitioner 5 waived his right to challenge the nature of the charge against him or the 6 adequacy of his lawyer’s pre-trial investigation when he pled guilty 7 years ago. Further, Petitioner’s vague complaints about his lawyer’s 8 performance do not adequately allege that his guilty plea – and the 9 resulting favorable resolution of his criminal case – was anything other 10 than voluntary or intelligent. McMann, 397 U.S. at 771. 11 16. Exhaustion. To obtain habeas relief under Section 2254, a 12 prisoner must allege that he is in custody due to a state court judgment in 13 violation of the federal constitution. Under federal habeas law, a prisoner 14 must exhaust all claims as a prerequisite to a federal court’s consideration 15 of a habeas corpus petition. 28 U.S.C. § 2254(b)(1)(A); Kyzar v. Ryan, 16 780 F.3d 940, 946 (9th Cir. 2015). Exhaustion occurs when a prisoner 17 fairly presents those claims to the state’s highest court. Rose v. Lundy, 18 455 U.S. 509 (1982); Duncan v. Henry, 513 U.S. 364, 370 (1995). 19 17. Petitioner failed to present his claims in the California 20 Supreme Court. (Docket # 17-1 at 13.) This federal court cannot hear his 21 unexhausted petition. 22 * * *

23 24 25 26 27 28 1 Therefore, the present action is hereby DISMISSED with prejudice. 2 IT IS SO ORDERED. 3

5 || Dated: March 20, 2020 6 HON. R. GARY KLAUSNER

UNITED STATES DISTRICT JUDGE

7 8 Presented by: 9 10 11

HON. MICHAEL R. WILNER

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | ———— 1 The Court notes the Attorney General’s additional contention that 27 || Petitioner’s claims are too vague and conclusory to lead to relief. (Docket # 17-1 at 17.) Given the obvious procedural defects with the petition, it is not necessary 28 || for the Court to take up issues involving the merits of Petitioner’s allegations.