BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on February 4, 2011, and on behalf of Respondent on August 17, 2011. In addition to Petitioner's first amended petition, there is pending before the Court Petitioner's motion to amend the petition, which was filed on February 24, 2014. Respondent filed opposition to the motion on April 2, 2014, and Petitioner filed a reply, styled as a traverse, on May 14, 2014.
Petitioner was convicted on September 23, 2008, in the Kings County Superior Court (KCSC) and filed an appeal from the judgment in the California Court of Appeal, Fifth Appellate District (CCA), in which Petitioner raised instructional error. The judgment was affirmed on December 1, 2009. (LD 4.)
Petitioner then sought state court remedies with respect to a claim that the evidence was insufficient to support the conviction. On January 14, 2010, Petitioner filed a petition for writ of habeas corpus in the CCA in which Petitioner raised the insufficiency of the evidence; the petition was denied on January 21, 2010, in an order which stated that Petitioner had failed to exhaust his remedy of seeking relief in the trial court before filing in the appellate court, and further that the sufficiency of the evidence is generally not cognizable on habeas corpus. (LD 7, 7A.)
Petitioner next raised the sufficiency of the evidence in a petition filed in the KCSC. That petition was denied on March 26, 2010. The order stated that Petitioner had not shown that his appellate counsel had been ineffective in advising Petitioner to raise the issue on habeas corpus, because in light of the petition and the record from the criminal case, Petitioner had failed to show that there was a reasonable probability that but for counsel's omission, the result would have been more favorable to Petitioner. (LD 8A.)
Petitioner raised the issue before the CSC in a petition filed on April 22, 2010, which was denied on November 10, 2010, with citations to
On January 11, 2011, in the instant action, Petitioner filed a petition for writ of habeas corpus in which he alleged that he was a state prisoner serving an eight-year sentence for theft and receiving stolen property imposed by the KCSC in case number 08CM0270. (Pet., doc. 1, 1.) Petitioner alleged three claims in the petition: 1) appellate counsel was ineffective for failing to raise on appeal the insufficiency of the evidence to support Petitioner's convictions; 2) an erroneous jury instruction concerning motive, which permitted consideration of unemployment and poverty as evidence tending to show guilt, violated his rights to due process of law and a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments; and 3) the evidence was insufficient to support his convictions, and thus Petitioner suffered a violation of due process of law. (
On February 11, 2011, the Court ordered Petitioner to show cause why the petition should not be dismissed as a "mixed" petition containing both exhausted and unexhausted claims. Petitioner responded by admitting that his claim concerning the allegedly ineffective assistance of counsel (IAC) was unexhausted, and moving to amend the petition to withdraw the IAC claim. On July 27, 2011, the Court granted the motion and directed that the action proceed on the petition as amended to include only the second and third claims. Respondent filed an answer to the first amended petition on October 28, 2011. Petitioner filed a traverse on November 16, 2011.
It was not until July 10, 2013, in a petition filed in the KCSC, that Petitioner first sought state court remedies for the IAC claims that he now seeks to add to the petition in the motion pending before the Court. (Doc. 24, 45.) The KCSC denied the petition on August 19, 2013, because Petitioner had failed to explain the delay in raising the IAC claims, which had extended for over four years after his conviction. The KCSC noted that Petitioner's appellate counsel had told Petitioner on February 24, 2009, that no evidence of IAC could be found in the appellate record, yet Petitioner had failed to justify his delay in raising IAC on habeas corpus. The court cited
Petitioner filed a habeas petition raising the IAC claim in the CSC on October 15, 2013, which the court denied on January 15, 2014, citing
In summary, with respect to the present proceeding, Petitioner had withdrawn the IAC claim, and the case had long been ready for decision on the remaining two claims when Petitioner filed the motion for leave to amend that is presently before the Court.
In the motion for leave to amend, Petitioner seeks to add the following claims to the petition: 1) Petitioner was wholly denied counsel and was denied the effective assistance of counsel when his trial counsel omitted to provide expert testimony concerning footprints and DNA evidence and failed on cross-examination to impeach two witnesses, and 2) Petitioner was wholly denied counsel when his trial counsel spent only six minutes with Petitioner before trial and thus failed adequately to communicate with Petitioner and to investigate the evidence and the defense case. (Mot., doc. 24 at 4, 13.)
Respondent opposes the motion on the ground that amendment of the petition would be futile because the new IAC claims would be barred by the statute of limitations. Petitioner contends that he was diligent and was prevented by extraordinary circumstances from filing a timely petition; thus, he is entitled to equitable tolling of the statute of limitations.
Preliminarily, the Court notes Respondent's contention that by filing an amended petition in which he stated only two new IAC claims and omitted any statement of the previously pending and fully briefed claims of instructional error and insufficiency of the evidence, Petitioner intended to withdraw the two earlier claims. It is true that Local Rule 220 provides that unless prior approval to the contrary is obtained from the Court, every pleading as to which an amendment or supplement is permitted shall be retyped or rewritten and filed so that it is complete in itself without reference to the prior or superseded pleading.
Accordingly, the Court will consider Petitioner's pleading to constitute a motion for leave to file a second amended petition in which Petitioner sets forth not only the two previously briefed claims, but also the new IAC claims. Further, with respect to timeliness, the Court will consider whether the new claims would relate back to the original claims.
A petition for a writ of habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil actions to the extent that the civil rules are not inconsistent with any statutory provisions or the rules governing section 2254 cases. 28 U.S.C. § 2242; Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). Fed. R. Civ. P. 15(a) may be used to permit the petitioner to amend the petition.
Fed. R. Civ. P. 15(a) provides with respect to amendments before trial that a party may amend its pleading once as a matter of course within twenty-one days after service of the pleading, a required responsive pleading, or a motion under Rule 12(b), (e), or (f), whichever is earlier; in all other cases, a party may amend its pleading only with the opposing party's written consent or the Court's leave. Further, the Court should freely give leave when justice so requires.
Factors to be considered when ruling on a motion to amend a habeas corpus petition include bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether or not the party has previously amended his pleadings.
Respondent contends that the amendment should not be allowed because the claims Petitioner seeks to add to the petition are untimely. Petitioner argues that the new claims relate back to earlier claims and thus are not untimely; further, Petitioner contends that he is entitled to equitable tolling of the statute of limitations.
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, subdivision (d) reads:
28 U.S.C. § 2244(d).
Here, under § 2244(d)(1), the judgment became final either upon the conclusion of direct review or the expiration of the time for seeking such review in the highest court from which review could be sought.
Title 28 U.S.C. § 2244(d)(2) states that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one-year limitation period. 28 U.S.C. § 2244(d)(2).
An application for collateral review is "pending" in state court "as long as the ordinary state collateral review process is `in continuance'—
Here, all of Petitioner's state habeas petitions were filed before the judgment became final; however, one petition, namely, the petition filed in the CSC on April 22, 2010, was pending at the time the statute began running on May 12, 2010, and thus tolled the running of the statute for 202 days through November 10, 2010, the date the CSC denied the petition.
Accordingly, the one-year period began to run the next day on November 11, 2010, and expired on year later on November 10, 2011. Under this analysis, Petitioner's new IAC claims are untimely.
Petitioner argues that a combination of circumstances, including limited education and literacy, limitations on access to the law library, a learning disability (dyslexia), and his appointed appellate counsel's failure to raise his IAC claims on appeal or by writ constituted extraordinary circumstances beyond his control that prevented him from filing his IAC claims in a timely manner.
The one-year limitation period of § 2244 is subject to equitable tolling where the petitioner shows that he or she has been diligent, and extraordinary circumstances have prevented the petitioner from filing a timely petition.
The petitioner must show that the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.
Petitioner describes himself as illiterate, unable to spell, and beset with unspecified problems with his writing. He alleges that although his grade level was 4.4, through hard work a level of 9.6 has been achieved. A form of the California Board of Prison Terms for requesting parole assistance dated August 2008 reflects that his file reflected no mental, developmental, or physical disabilities but a reading level of 4.6; Petitioner indicated that he could not see and needed help reading his documents. A test of adult basic education (T.A.B.E.) taken in January 2009 reflected a reading score of 8.4. Petitioner alleges that he must use a dictionary and his common sense, which, with study, resulted over much time in his learning to prepare the proposed habeas petition. (Doc. 24 at 33, 53-54.)
Petitioner alleges that at an unspecified time while confined at Ben Lomond Conservation Camp, he could visit the law library only once a month. (Doc. 24, 33.) The docket reflects that on May 21, 2011, Petitioner filed a notice of change of address to the Ben Lomond facility from his previous address at Susanville. (Doc. 7.) Further, Petitioner alleges that the law library was closed half of an unspecified period of time. (Doc. 24, 33.)
Although Petitioner may have a learning disability, the record reflects that Petitioner's reading level was 8.4 in 2009 and that Petitioner was able to prepare and submit numerous habeas petitions in the state courts in 2010 and 2011, and again in 2013. In this regard, Petitioner has not shown how any extraordinary circumstance prevented or interfered with his ability to submit his claims to various courts during the pertinent time period.
Insofar as Petitioner relies on his ignorance of the law and his status as a pro se litigant operating from prison with limited resources, Petitioner's pro se status is not an extraordinary circumstance.
Likewise, limitations on law library access and research materials are not extraordinary, but rather are normal conditions of prison life.
Petitioner alleges that if he had not relied on his appointed appellate counsel, he would have filed a petition much sooner. (Doc. 24, 33.) The KCSC's order denying Petitioner's habeas claims of IAC found that on February 24, 2009, Petitioner's appointed appellate counsel had informed him that she had found no evidence of ineffective assistance of counsel in the appellate record. A copy of a page of what appears to have been correspondence of that date with Petitioner regarding the case reflects counsel's statement that she found no IAC in the record of the case. (Doc. 24, 45-46.)
Although Petitioner appears to contend that appellate counsel was ineffective, Petitioner has not made a showing that would support such a finding. To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different.
Here, appellate counsel's failure to raise the ineffective assistance of counsel on appeal has not been shown to have been unreasonable or substandard. A summary of the evidence that relates to the merits of the petition will follow, and it will show that there was strong circumstantial evidence of Petitioner's guilt of theft, including the statement of Petitioner's girlfriend made to a deputy after the arrest that she had seen Petitioner and his co-defendant, a scrap metal dealer, unloading the stolen ladders in the driveway; the presence in the driveway not only of the ladders but also of a milk can and tools belonging to the owner of the ladders; Petitioner's presence where the stolen ladders were found; and shoe tracks at the location where the ladders were taken that were strikingly similar, with respect to size, logos, and tread patterns, to a pair of Nike running shoes that were seized from Petitioner at the scene of his arrest. (LD 4.) Petitioner has not shown or even suggested how an expert regarding the physical evidence could have provided or supported any defense. The impeachment that Petitioner faults trial counsel for having omitted related to factual matters that were largely immaterial. Petitioner has not set forth any evidence or additional factual matter that shows that any item of exculpatory or favorable evidence, consequential impeachment, or viable defense was omitted.
Further, it clearly appears that Petitioner was not abandoned by appellate counsel; rather, appellate counsel simply found nothing in the appellate record upon which to base a claim of ineffective assistance of counsel in the direct appeal. Simply because Petitioner alleges that his defense was that he was not present at the offense is not a basis for concluding that counsel was ineffective here.
Attorney negligence is generally not a sufficient basis for applying equitable tolling to the § 2244(d)(1) limitation period, although attorney misconduct that is sufficiently egregious to meet the extraordinary misconduct standard can be a basis for applying equitable tolling.
To the extent that Petitioner had a disagreement with counsel during the direct appeal, it does not serve to explain any of Petitioner's later delay in filing collateral challenges in the course of exhausting state court remedies as to the new IAC claims.
In summary, Petitioner has not shown how he suffered any extraordinary circumstance with respect to the advice of his appointed appellate counsel.
In addition to the absence of facts indicating extraordinary circumstances, Petitioner's motion lacks facts warranting a conclusion that Petitioner was diligent. The diligence required for equitable tolling is reasonable diligence, not "maximum feasible diligence."
Here, Petitioner's new IAC claims arise from omissions of trial counsel that Petitioner alleges were unreasonable and substandard, including 1) counsel's failure to have the shoe print evidence examined by an expert, to have such an expert testify, and failure to test for and present expert evidence regarding DNA; 2) counsel's failure to impeach a deputy who testified inconsistently regarding the location of the ladders that he observed when he was at the site where the ladders were discovered and Petitioner was arrested (either on a trailer [preliminary hearing testimony] or on the ground [trial testimony]); 3) counsel's failure to impeach the owner of the ladders whose testimony was inconsistent or uncertain regarding when he noticed that some of the ladders had been moved; and 4) counsel's failure to communicate with Petitioner adequately before trial regarding the evidence and the defenses. (Doc. 24, 25-28.) Petitioner admits that he discovered these claims by reviewing the reporter's transcripts and performing research. (
After Petitioner's conviction in 2008 and affirmance of the judgment in December 2009, Petitioner proceeded directly to file habeas petitions in the California courts. He began in January 2010 with respect to the claim regarding insufficiency of the evidence, which he presented in four petitions to three different courts between January 2010 and April 2010. After the last state petition was denied in early November 2010, it took Petitioner only two months to file the federal petition in the instant action. The petition as originally filed contained an unexhausted IAC claim regarding appellate counsel's failure to raise the insufficiency of the evidence, and the Court notified Petitioner of the consequences of proceeding with an unexhausted claim in its order to show cause that issued in early February 2011. However, it was not until July 2013 that Petitioner finally sought habeas relief in the state courts with respect to the allegedly ineffective assistance of trial counsel, and not until February 2014 that Petitioner sought to raise these IAC claims here. The record demonstrates repeated unexplained, lengthy delays which warrant a conclusion that Petitioner did not proceed with reasonable diligence.
In summary, the record and allegations before the Court do not reflect facts that would entitle Petitioner to equitable tolling of the limitations period.
Petitioner argues that his new claims would not be futile because any untimeliness would be superseded by Petitioner's claim of actual innocence. Petitioner asserts that unspecified evidence was not obtained that would establish his actual innocence; further, the reliability of the evidence of guilt is in doubt. (Doc. 24 at 9, 11, 35.) Petitioner mentions as support for his actual innocence a lack of fingerprints on a pie box of a type found at both the scene of the theft and the scene of Petitioner's apprehension as well as an absence of fingerprints on other items; the failure to take and test soil samples at the scene of the theft, presumably to compare with soil found on Petitioner's shoes; and a failure to test or compare the shoe impressions with Petitioner's shoes. (Doc. 35, 22.)
In
The timing of the petition is a factor bearing on the reliability of the evidence purporting to show actual innocence.
The gateway should open only when a petition presents "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error."
Here, even if there were no fingerprints of Petitioner on any of the items stolen from the victim, and even if there were no similarity between any soil on Petitioner's shoes and that at the scene of the theft, it would not preclude the trier of fact from relying on a testifying law enforcement officer's testimony concerning the details of the characteristics of the shoes and the tracks. Further, it would not preclude a reasonable juror from concluding that Petitioner was guilty of the theft. A reasonable juror could conclude that Petitioner committed the theft because of the evidence that Petitioner unloaded the stolen ladders and was found in their vicinity.
The Court concludes that Petitioner is not entitled to the benefit of the actual innocence exception to the statute of limitations.
Respondent and Petitioner disagree as to whether the Petitioner's untimely claims relate back to the claims filed in the original petition.
An amendment to a pleading relates back to the date of the original pleading when 1) the law that provides the applicable statute of limitations allows relation back, 2) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading, or 3) the amendment changes the party or naming of a party under specified circumstances. Fed. R. Civ. P. 15(c)(1). In a habeas corpus case, the "original pleading" referred to in Rule 15 is the petition.
Relation back is appropriate in habeas cases where the original and amended petitions state claims that are tied to a common core of operative facts.
Here, the new IAC claims relate to counsel's investigation and handling of the trial; the claims properly filed in the original petition relate to alleged trial court error in instructing the jury and the overall insufficiency of the evidence. The new claims are based on events that are different in both time and type from the originally raised claims. Although both the new claims and the original claims relate to proceedings before the jury, this is not a sufficient relationship to permit relation back.
Accordingly, the Court concludes that Petitioner's new claims, which are untimely, do not relate back to the claims in the original petition. Therefore, permitting amendment to include the new IAC claims would be futile because they are untimely.
In summary, in accordance with the foregoing analysis, the Court will deny Petitioner's motion for leave to file an amended petition.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
The challenged judgment was rendered by the KCSC, which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights.
Accordingly, the Court concludes that it has jurisdiction over the subject matter of the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States.
An answer was filed on behalf of Respondent R. E. Barnes, Warden of the California Correctional Center at Susanville, who, pursuant to the judgment, had custody of Petitioner at the California State Prison at Los Angeles County, his institution of confinement at the time the petition and answer were filed. (Doc. 17.) Petitioner thus named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules).
Accordingly, the Court concludes that it has jurisdiction over the person of the Respondent.
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1);
(LD 4, 2-4.)
Petitioner argues that he suffered a denial of due process of law in connection with the trial court's jury instructions on the jury's consideration of Petitioner's lack of employment at the time of the crime as a motive for theft.
Title 28 U.S.C. § 2254 provides in pertinent part:
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts.
A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.
Further, habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA.
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review . . . is limited to the record that was before the state court that adjudicated the claim on the merits."
With respect to each claim, the last reasoned decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1).
Petitioner argues that the instruction given on motive unfairly permitted the trier of fact to infer that his employment status and poverty gave him a motive for the crime.
Here, the last reasoned decision on Petitioner's claim of instructional error was the decision of the CCA.
In affirming the judgment, the CCA reviewed the pertinent procedural history of Petitioner's claim of instructional error and opined as follows:
During his closing argument, the prosecutor said:
(LD 4, 4-9.)
When a conviction is challenged in a proceeding pursuant to 28 U.S.C. § 2254 on the basis of error in jury instructions, two clearly established legal principles govern a district court's review.
First, the United States Supreme Court has held that a challenge to a jury instruction based solely on an error under state law does not state a claim cognizable in federal habeas corpus proceedings.
Secondly, the only basis for federal collateral relief for instructional error is that the infirm instruction or the lack of instruction by itself so infected the entire trial that the resulting conviction violates due process.
Further, the instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record.
Moreover, even if there is instructional error, a petitioner is generally not entitled to habeas relief for such error unless it is prejudicial. The Supreme Court has held that harmless error analysis applies to instructional errors as long as the error at issue does not categorically vitiate all the jury's findings.
Here, to the extent that Petitioner states a federal claim, the state court's decision was not contrary to, or an unreasonable application of, clearly established federal law within the meaning of 28 U.S.C. 2254(d)(1). The instruction regarding motive was reasonably understood as relating to evidence concerning the co-defendants. It was not reasonably likely that the jury would understand the instructions as a whole to permit conviction based on motive alone because the jury was also instructed on the need to prove all the elements of the substantive offense of theft as well as the jury's ability to disregard any instruction applying to facts determined by the jury not to exist. (LD 14, 2 RT 247-49, 256, 261-63.) The limiting instruction may not have affirmatively mentioned Petitioner, but the instructions as a whole fairly communicated the prohibition against considering Petitioner's lack of employment as a basis for his conviction. Juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted except in extreme circumstances that render an instruction insufficient to overcome prejudice.
Accordingly, Petitioner's claim of instructional error will be denied.
Petitioner argues that the evidence was insufficient to support his conviction of grand theft.
Respondent argues that this claim should not be reviewed because Petitioner procedurally defaulted in state court by failing to raise this issue on appeal, and the CSC denied the subsequent habeas petition with citation of state law authorities to the effect that habeas corpus is not a proper vehicle for claims of the insufficiency of the evidence, and that habeas cannot substitute for appellate review of the sufficiency of the evidence.
The doctrine of procedural default is a specific application of the more general doctrine of independent state grounds. It provides that when state court decision on a claim rests on a prisoner's violation of either a state procedural rule that bars adjudication of the case on the merits or a state substantive rule that is dispositive of the case, and the state law ground is independent of the federal question and adequate to support the judgment such that direct review in the United States Supreme Court would be barred, then the prisoner may not raise the claim in federal habeas absent a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice.
Here, even if Petitioner procedurally defaulted on his insufficiency of the evidence claim, the analysis of cause, prejudice, and miscarriage of justice is potentially more complex than if the court were to resolve the underlying issues on the merits. In a habeas case, it is not necessary that the issue of procedural bar be resolved if another issue is capable of being resolved against the petitioner.
Where a state court did not reach the merits of a claim, federal habeas review is not subject to the deferential standard that applies under § 2254(d) to "any claim that was adjudicated on the merits in State court proceedings"; rather, the claim is reviewed
To determine whether a conviction violates the constitutional guarantee of due process of law because of insufficient evidence, a federal court ruling on a petition for writ of habeas corpus must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
All evidence must be considered in the light that is the most favorable to the prosecution.
The
Petitioner appears to base his claim on what he characterizes as the absence of any evidence demonstrating that Petitioner was ever present at the victim's ranch, stole property from the ranch, or harbored the requisite intent to do so. (Doc. 1, Exhibit; LD 9, 7.)
Under California law, grand theft or larceny is defined as the felonious taking and carrying away of the personal property of another with the intent to steal it and carry it away. Cal. Pen. Code § 487(a); 2009-2010 Cal. Stats., 3rd Ex. Sess., c. 28, $17;
Here, at the scene of the taking, there were shoe prints that matched Petitioner's shoes and the tire tracks that matched the tires of Kokko's Blazer; further, there were pie boxes that tended to connect the Blazer and the site of the taking. Further, Petitioner was found at the location where the ladders and tools taken in the theft had been carried. This evidence was sufficient to permit a rational trier of fact to infer that Petitioner was present and participated in the taking and carrying away of the ladders and tools. The circumstances of the taking and the presence of the stolen items at the recycling site along with tools that were appropriate for dismantling a ladder permitted an inference that there was an intention to steal or permanently deprive the owner of his property.
In addition, Petitioner's girlfriend informed Deputy Sweeney that she saw Petitioner and Jones unloading the ladders, although she claimed not to recall having said that when she testified at trial. Even if the girlfriend's testimony were in doubt, the other evidence was sufficient to support rational inferences that Petitioner was guilty of grand theft.
Accordingly, the Court will deny Petitioner's claim of the insufficiency of the evidence.
On May 29, 2014, Petitioner filed a motion for an evidentiary hearing in connection with his motion for leave to amend the petition. Petitioner refers to the determination of factual findings regarding cause and prejudice or the ineffective assistance of counsel. Petitioner argues that he is entitled to an evidentiary hearing and discovery, and to the appointment of counsel if his motion is otherwise granted. No opposition to the motion was filed.
It is unclear whether Petitioner is referring to an evidentiary hearing on his IAC claim, or rather to an evidentiary hearing regarding equitable tolling.
Generally, it is established in this circuit that a habeas petitioner should receive an evidentiary hearing when he makes a good faith allegation that would, if true, entitle him to equitable tolling.
Here, as previously discussed, Petitioner's allegations that he was without counsel or that appointed appellate counsel provided ineffective assistance have been contradicted by the record. Petitioner has failed to allege any facts that would warrant a conclusion that counsel engaged in any misconduct that would constitute extraordinary circumstances. Further, it does not appear that any conduct of counsel could have caused Petitioner's delay in raising his new claims. Although Petitioner claimed that he suffered some limitations and generalized difficulties in the preparation of petitions, this Court's detailed analysis of the pertinent events shows that Petitioner engaged in lengthy delays, including protracted and unjustified delay after being informed by this Court that an IAC claim was unexhausted.
In summary, Petitioner has not alleged either diligence or facts showing extraordinary circumstances that were the cause of the delay. It thus appears that Petitioner has not alleged facts that would entitle him to equitable tolling or to relief on his IAC claim.
In conclusion, the Court will deny Petitioner's motion for an evidentiary hearing.
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A);
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong.
Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, the Court will decline to issue a certificate of appealability.
Accordingly, it is ORDERED that:
1) Petitioner's motion for leave to amend the petition is DENIED; and
2) Petitioner's motion for an evidentiary hearing is DENIED; and
3) The first amended petition for writ of habeas corpus is DENIED; and
4) The Clerk is DIRECTED to enter judgment for Respondent; and
5) The Court DECLINES to issue a certificate of appealability.
