Fredrick v. Vigra

• Decision Date: 28 June 2013
• Docket Number: Case No. CV 12-04487-VBK
• Court: U.S. District Court — Central District of California
• Parties: SHARVON EDWARD FREDRICK, Petitioner, v. TIM V. VIGRA, Respondent.

SHARVON EDWARD FREDRICK, Petitioner, v. TIM V. VIGRA, Respondent.

Case No. CV 12-04487-VBK

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

DATED: June 28, 2013

MEMORANDUM AND ORDER

INTRODUCTION

Sharvon Edward Fredrick (hereinafter referred to as "Petitioner"), a California state prisoner proceeding pro se, filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition"), pursuant to 28 U.S.C. § 2254 on May 23, 2012 in the United States District Court for the Central District of California.¹Petitioner also executed a "Consent to Proceed Before a United States Magistrate Judge." In accordance with the Court's Order requiring Respondent to file a response, on July 30, 2012, Respondent filed a "Motion to Dismiss Petition for Writ of Habeas; Memorandum of Points and Authorities" ("MTD") and a "Notice of Lodging" contending that the Petition is: (1) unverified; (2) completely unexhausted; and (3) barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1) as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Respondent also executed a "Consent to Proceed Before a United States Magistrate Judge."

On August 16, 2012, Petitioner filed a "Motion of Show of Actual Innocence to 'Override' 28 U.S.C. § 2244(d) Statute of Limitations by Way of Expiatory Victim Comp. [sic] Request of Grant to $10,000,000 to $20,000,000 Quest [sic] for Speedy Suite of Rape Crisis and Pain and Distress $75,000,000 - Worth Terms" ("Opposition" or "Opp."). On August 27, 2012, Petitioner filed a "Motion for Magistrate Judge's Adherence to Actual Innocence Due Diligence Discovery of Irrefutable Evidence." On August 31, 2012, Petitioner filed a document entitled "Certificial [sic] Document Inclusion of Penalty of Perjury Excerpt to Conclude Victim Comp/Pain and Distress Speedy Suite Grant Request." On October 3, 2012 and October 22, 2012, Petitioner filed documents entitled "Petitioner's Pro 'Se Motion: Letter to Honorable Magistrate Judge to Grant $10/20,000,000 Victim Comp. Deduct of $75,000,000 'Victim Comp.' Expiatory Pursuit Suite of Subpoena [sic] (At Prayer)." On October 23, 2012, Petitioner sent correspondence alleging he is inthe prison's Enhanced Outpatient Program and is operating from a point of severe mental illness.

On December 3, 2012, the Court issued a Minute Order ordering Respondent to obtain Petitioner's medical records and lodge a copy with the Court in order to more fully develop the record as to Petitioner's equitable tolling claim. The Court also ordered Respondent to file a Supplemental Brief after the medical records were filed addressing whether additional expansion of the record was necessary, and if it was not necessary, to address Petitioner's claim for equitable tolling.

On January 17, 2013, Respondent filed an "Application to Lodge Petitioner's Medical Records ["MR"] under Seal," which was granted by the Court.

On March 26, 2013, the Court issued a Minute Order granting the Motion to Dismiss in part with respect to the Petition's lack of verification. The Court ordered the Clerk of the Court to send Petitioner a copy of the verification page of his Petition for signature and verification. The Court took the remaining arguments of the Motion to Dismiss—regarding exhaustion and timeliness—under submission.

On March 27, and April 1, 8, and 18, 2013, Petitioner filed various letters and documents which the Court construes as further Opposition to the Motion to Dismiss. The April 8 and 18 filings included the requested signature and verification of the Petition.

On April 19, 2013, Respondent filed a Brief on Necessity of Expanding Record and Opposition to Equitable Tolling ("Supp. Brief").

On April 25, 2013, Petitioner filed an "Exhibit Correction" with the Court.

On May 20, 2013, Petitioner filed his Supplemental Opposition to the Motion to Dismiss ("Supp. Opp.").

Having reviewed the allegations in the Petition and the matters set forth in the record, the Motion to Dismiss and Petitioner's various filings in Opposition, it is ORDERED that the Motion to Dismiss be granted and the Petition be dismissed.

PRIOR PROCEEDINGS

On June 29, 2001, a Los Angeles County Superior Court jury found Petitioner guilty of two counts of rape by force or fear in violation of California Penal Code ("PC") § 261(a)(2) and one count each of first degree burglary in violation of PC § 459 and child endangerment in violation of PC § 273a(a). The jury also found that Petitioner used a deadly weapon—a meat fork—in violation of PC § 12022.3(a) while committing the rape offenses. (Lodged Documents Nos. 1 and 2.) The jury also found true the allegation that the rape offenses were committed during the burglary, but found not true the allegation that the burglary occurred with the intent to commit rape. (Lodged Document 2.) On August 7, 2001, the trial court sentenced Petitioner to state prison for a total term of 29 years to life. (Lodged Documents Nos. 1 and 3.)

Petitioner appealed the judgment. (Lodged Documents Nos. 4-5.) On June 5, 2002, the California Court of Appeal issued an opinion reversing the portion of the judgment imposing a four-year enhancement for use of a deadly weapon on the first count of rape because it should have been stayed, but affirming the judgment in all other respects. (Lodged Document No. 6.) The Court of Appeal later recalled the remittitur and reissued an identical opinion with arefiling date of September 23, 2002. (Lodged Document No. 6.)

Petitioner filed a Petition for Review in the California Supreme Court, which was summarily denied on November 26, 2002. (Lodged Documents Nos. 7 and 8.)

On August 18, 2011,² Petitioner filed a document labeled "Motion of Discovery of True (Dom.) (Esp.) Pro Illogics Via Misfortune '+' Exculpatance" in the Los Angeles County Superior Court. (Lodged Document No. 9.) On August 24, 2011, the court construed the document as a petition for writ of habeas corpus alleging that Petitioner should not have been convicted of rape because there was no evidence of lack of consent. (Lodged Document No. 10.) The court denied the petition as: (1) conclusory (with a citation to People v. Karis, 46 Cal. 3d 612, 656, 250 Cal.Rptr. 659 (1988)); (2) untimely because it was filed more than 10 years after Petitioner's conviction and sentence, and Petitioner offered no justification for the delay (with citations to In re Clark, 5 Cal. 4th 750, 783, 21 Cal.Rptr. 2d 509 (1993) and In re Seaton, 34 Cal. 4th 193, 199-200, 17 Cal.Rptr. 3d 633 (2004)); and (3) procedurally defaulted for failing to raise the claims on direct appeal (with citations to In re Dixon, 41 Cal. 2d 756, 759, 264 P. 2d 513 (1953), and In re Waltreus, 62 Cal. 2d 218, 225, 42 Cal.Rptr. 9 (1965)). (Lodged Document No. 10.)

On August 24, 2011,³ Petitioner filed a habeas petition in the California Supreme Court, alleging a cursory ground for "innocence by reason of misfortune." (Lodged Document No. 11.) On January 4, 2012, the California Supreme Court denied the petition with a citationto In re Robbins, 18 Cal. 4th 770, 780, 77 Cal.Rptr. 2d 153 (1998). (Lodged Document No. 12.)

The within Petition was constructively filed on April 27, 2012.

STATEMENT OF FACTS⁴

"On the evening of January 6, 2001 at approximately 11:45 p.m., Christy G. was at her apartment in Lancaster with her two-year-old son. While on the telephone, she heard a knock at the door. The person at the door, whom she identified at trial as [Petitioner], said he was looking for her neighbors. She told him he was at the wrong apartment and shut the door. Christy recognized this person, although she did not know his name, because he often was seen around her apartment complex and she had casually spoken to him on several occasions. Christy finished her telephone conversation, and, about 15 minutes later, opened her pantry door to put something away. [Petitioner] was standing in the pantry.FN3 Christy screamed, and [Petitioner] knocked her to the floor. [Petitioner] put his hands on her throat and told her to be silent. Christy's son came over and hit [Petitioner] on the head, after which [Petitioner] pushed the boy, who fell and began crying. Christy then struck [Petitioner], causing him to fall to the floor.

FN3. Christy was 95 percent sure she locked herfront door when she shut it after speaking to [Petitioner]. She thought [Petitioner] could have entered her apartment through the sliding glass door that opened to her balcony, which was partially open at the time of the incident.

Free from [Petitioner], Christy grabbed her son and ran to the front door but was unable to undo the child safety lock and open the door before [Petitioner] came at her. [Petitioner] had taken a meat fork from the butcher block in the kitchen and held it to Christy's neck while he grabbed her around the waist. [Petitioner] told Christy that if she and her son were not quiet, he would stab them. Christy asked [Petitioner] what he wanted and said she would do whatever he wanted as long as he did not harm her and her son. [Petitioner] crudely responded he wanted to have sex with her. Hoping she could escape, Christy asked [Petitioner] to allow her to take her son to her downstairs neighbors' apartment so he would not have to watch. [Petitioner] initially agreed but then changed his mind. [Petitioner] then led Christy into her bedroom, moving the meat fork between her rib cage and her neck, locked the door and left her son in the other room alone.

While in the bedroom, [Petitioner] had intercourse with Christy twice. During the entire time, [Petitioner] held the meat fork against Christy. After [Petitioner] left the bedroom, Christy dressed, went into the living room, grabbed her son and returned to the bedroom. Whenshe thought [Petitioner] had exited the apartment, she walked out of the bedroom and saw [Petitioner] in the pantry, wiping it down with a napkin. [Petitioner] told Christy to return to the bedroom or he

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