Rogers v. Gastelo
| Decision Date | 10 August 2018 |
| Docket Number | Case No.: 16-cv-01943-MMA-BGS |
| Court | U.S. District Court — Southern District of California |
| Parties | TYRONE ROGERS, Petitioner, v. JOSIE GASTELO, Warden, Respondent. |
REPORT AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Tyrone Rogers ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his 1994 conviction in San Diego County Superior Court case number SCD106382. (ECF No. 8.)1 Respondent Josie Gastelo ("Respondent") moves to dismiss the Petition contending: (1) the Court lacks jurisdiction over the Petition as Petitioner cannot satisfy the "in custody" requirement under the Antiterrorism andEffective Death Penalty Act of 1996 ("AEDPA"); (2) the Petition is time-barred under the AEDPA; and (3) all claims are procedurally defaulted. (ECF No. 16 at 1-2.) Petitioner's opposition to the motion ("Opposition") was filed on October 4, 2017. (ECF No. 18.)
This Report and Recommendation is submitted to United States District Judge Michael M. Anello pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the Unites States District Court for the Southern District of California. Based on the documents and evidence presented, and for the reasons set forth below, the Court RECOMMENDS that Respondent's Motion to Dismiss (ECF No. 16) be GRANTED and that this action be DISMISSED with prejudice.
In 1994, a jury convicted Petitioner of two counts of first degree residential burglary under California Penal Code2 §§ 459, 460 in case number SCD106382. (Lodgment 1; Lodgment 10 at 1.) On April 6, 1995, the San Diego County Superior Court sentenced him to four years in state prison on each count to be served concurrently. (Lodgment 2 at 10.) Petitioner appealed his conviction contending he was denied his constitutional right to trial by an impartial jury. On August 29, 1996, the California Court of Appeal rejected this argument and affirmed the judgment on direct appeal. (Lodgment 3.) Based on Respondent's Lodgments, Petitioner did not seek review in the California Supreme Court. (See Lodgments, ECF No. 17.) He has completed serving the custodial portion of that sentence. (Lodgment 5 at 1.)
In 2004, Petitioner waived a jury trial and was found guilty in the San Diego Superior Court case number SCD176027 of rape by a foreign object of an unconscious victim pursuant to Penal Code § 289(D) and attempted rape of an unconscious person pursuant toPenal Code §§ 664, 261(A)(4). (Lodgment 5 at 1.) He was sentenced to a term of twenty-five years to life, plus two consecutive five-year enhancements for the 1994 burglary conviction pursuant to Penal Code § 667(A)(1) (). (Id.; Lodgment 14 at 1.) On appeal, his sentence was modified to strike one of the five-year enhancements, and his conviction was otherwise affirmed. (Id.)
Petitioner unsuccessfully petitioned for habeas corpus relief in the state and federal courts. (See Lodgment 4; Rogers v. Giurbino, 619 F. Supp. 2d 1006 (S.D. Cal. 2007) [].)3
In 2007, Petitioner filed his first state collateral action in the San Diego County Superior Court challenging his 1994 conviction. (Lodgment 5.) In this petition, he claimed ineffective assistance of counsel in failing to investigate and regarding post-trial motionsand prosecutorial misconduct. The petition was denied on May 22, 2007 on the basis that Petitioner failed to meet the jurisdiction requirements for habeas relief because he was not in actual or constructive custody regarding his 1994 conviction. (Id. at 2 [quoting In re Azurin, 87 Cal. App. 4th 20, 25 (2001)].)
Petitioner then filed a habeas petition with the California Court of Appeal raising the same claims. (Lodgment 6.) The court denied the petition on August 30, 2007 holding that the "newly discovered evidence" Petitioner relied on was "not new and [did] not establish clear and fundamental constitutional error." (Id. at 2.) The same petition was summarily denied by the California Supreme Court on October 31, 2007. (Lodgment 7.)
In 2015, Petitioner filed a petition for resentencing pursuant to Penal Code § 1170.18, which was enacted by the California voters via Proposition 47, with the San Diego County Superior Court. (See Lodgment 9 at 4-5.) Effective November 5, 2014, Proposition 47 made certain penal provisions misdemeanors and authorized a petition under Penal Code § 1170.18 for the recall of certain felony sentences under certain conditions. (Lodgments 8, 9.) The court denied the petition, holding that Petitioner's commitment offenses, the 1994 residential burglaries were, "each for a violation which is not included in the crimes affected by the initiative." (Lodgment 8 at 1-2.) The California Court of Appeal and Supreme Court subsequently affirmed. (Lodgments 9-12.)
On December 8, 2015,4 Petitioner constructively filed a habeas petition in the San Diego Superior Court again attacking his 1994 conviction. (Lodgment 13.) As is relevant to the claims at issue here, he claimed the trial court improperly failed to hear a new-trial motion and that the trial court erred in considering the intended sexual offense felony underlying each of Petitioners' burglaries. (Id. at 12-15.) The petition was denied onJanuary 25, 2016. (Lodgment 14.) Noting that Petitioner was in custody pursuant to his 2004 conviction and not his 1994 conviction, the court held that Petitioner failed to satisfy the "jurisdictional requirements that he be in custody based on the conviction he is challenging in th[e] petition." (Id. at 3.)
On March 22, 2016, Petitioner constructively filed a nearly identical habeas petition in the California Court of Appeal.5 (Lodgment 15.) On April 1, 2016, the petition was denied as "untimely, repetitive, successive, and an abuse of the writ." (Lodgment 16 [citing In re Reno, 55 Cal. 4th 428, 459, 496-97, 501, 511 (2012); In re Clark, 5 Cal. 4th 750, 769, 799 (1993)].)
On April 11, 2016, Petitioner constructively filed a habeas petition in the California Supreme Court raising the same two claims discussed with regards to his December 8, 2015 petition to the San Diego Superior Court. (Lodgment 19 at 1-6.) The petition was summarily denied on May 18, 2016. (Lodgment 20.)
On July 28, 2016, Petitioner constructively filed a federal habeas petition initiating this case. (ECF No. 1.) On August 16, 2016, Petitioner's motion for leave to proceed in forma pauperis was granted. (ECF No. 4.) In the same order, the Court dismissed the petition for lack of subject matter jurisdiction, because "Petitioner has not received the necessary authorization [from the Ninth Circuit Court of Appeals] to file a second or successive petition, the Court lacks jurisdiction over those claims." (Id. at 4.) Petitioner then filed an application with the Ninth Circuit to file a second successive 28 U.S.C. § 2254 habeas corpus petition in the Southern District of California. (ECF No. 5.) The Ninth Circuit issued an order on May 26, 2017 denying "as unnecessary the application to file asecond or successive habeas petition" and permitting the district court to reopen the proceedings. (Id. at 2.)
Petitioner constructively filed the operative amended petition ("Petition") on June 8, 2017.6 (ECF No. 8.) On August 30, 2017, Respondent moved to dismiss the Petition contending: (1) the Court lacks jurisdiction over the Petition as Petitioner cannot satisfy the "in custody" requirement under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); (2) the Petition is time-barred under the AEDPA; and (3) all claims are procedurally defaulted. (ECF No. 16. at 1-2.) Respondent also lodged documents relevant to her motion. (Lodgments, ECF No. 17.) Petitioner subsequently filed an opposition to the motion ("Opposition") along with his own notice of lodgments. (ECF Nos. 18, 19.)
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts expressly permits a district court to dismiss a habeas petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254; see also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) ().
Respondent argues that Petitioner's claims challenging the constitutionality of his 1994 burglary conviction are barred by Lackawanna County District Attorney v. Coss, 532 U.S. 394, 401 (2001) and that he does not fall under any exception permitting a prisoner to challenge a prior conviction used to enhance his current sentence. (See ECF No. 16-1 at8-9.) Petitioner argues he does meet the requirements for an exception. (ECF No. 18 at 2-3.) For the reasons discussed below, Petitioner is incorrect.
Subject matter jurisdiction under 28 U.S.C. § 2254 is limited to those persons "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a); Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994). Accordi...
To continue reading
Request your trial