Trigueros v. Adams
| Decision Date | 14 September 2011 |
| Docket Number | No. 08–56484.,08–56484. |
| Citation | 11 Cal. Daily Op. Serv. 11765,2011 Daily Journal D.A.R. 14051,86 Fed. R. Evid. Serv. 707,658 F.3d 983 |
| Parties | Enrique TRIGUEROS, Petitioner–Appellant,v.Derral G. ADAMS, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Lauren E. Eskenazi, Los Angeles, CA, for petitioner Enrique Trigueros.Richard S. Moskowitz, Deputy Attorney General, Los Angeles, CA, for respondent Derral G. Adams, Warden.Appeal from the United States District Court for the Central District of California, Audrey B. Collins, Chief District Judge, Presiding. D.C. No. 2:07–cv–04335–ABC–FFM.Before: D.W. NELSON, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.
Petitioner–Appellant Enrique Trigueros appeals the district court's dismissal of his habeas petition as untimely, and not subject to statutory tolling. Trigueros's petition challenges his jury conviction in California state court for murder and attempted murder, for which he was sentenced to multiple consecutive terms of twenty-five years to life, and life. He filed his habeas petition in the California Superior Court in October 2005, approximately two-and-a-half years after his claims of ineffective assistance of counsel at trial were known to him and approximately eleven months after his conviction became final. The Superior Court determined that his petition was untimely, and the Court of Appeal summarily denied his petition on review. On review, the California Supreme Court requested informal briefing and subsequently denied Trigueros's petition. The federal district court, concluding that the last reasoned decision was that of the Superior Court, ruled that Trigueros's federal petition, filed in July 2007, was not statutorily tolled, and therefore was untimely under the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) one-year statute of limitations. We reverse and remand, holding that the California Supreme Court's request for informal briefing from the State of California (State) on Trigueros's habeas petition led to the California Supreme Court making a finding of timeliness, and deciding Trigueros's habeas petition on the merits.
On December 13, 2002, a California jury convicted Trigueros and a co-defendant of murdering Humberto Hernandez, and of the attempted willful, deliberate, and premeditated murders of three others. The trial court sentenced Trigueros to fifty years to life for murder, and a life sentence with the possibility of parole for each of the three attempted murder convictions.
Trigueros gave timely notice of the direct appeal of his conviction on April 2, 2003, arguing ineffective assistance of counsel because trial counsel allegedly did not appropriately object to or retain an expert to dispute dog-scent evidence. The Court of Appeal affirmed the trial court's judgment, and on August 8, 2004, the California Supreme Court denied Trigueros's petition for review. Trigueros did not appeal to the United States Supreme Court.
On October 18, 2005, Trigueros filed a habeas petition in the Los Angeles County Superior Court. The Superior Court denied the petition on November 29, 2005. In relevant part, the court stated: The court's order also addressed and denied Trigueros's petition on the merits.
Trigueros filed a habeas petition with the Court of Appeal on February 2, 2006. On February 21, 2006, the Court of Appeal handed down a brief order stating: “The petition for writ of habeas corpus is denied.” On April 21, 2006, Trigueros filed his habeas petition with the California Supreme Court. On January 8, 2007, the California Supreme Court requested “an informal response on the merits” from the State. The State filed an informal response, arguing in part that Trigueros's claims were procedurally barred on timeliness grounds. On June 13, 2007, the California Supreme Court denied Trigueros's petition, stating: “The petition for writ of habeas corpus is denied.”
On July 3, 2007, Trigueros, proceeding pro se, filed a federal habeas petition in the Central District of California. The government moved to dismiss the petition as untimely, and Trigueros filed a “traverse” in response. On August 5, 2008, the district court adopted the Magistrate Judge's Report and Recommendation, finding that Trigueros failed to satisfy AEDPA's one-year statute of limitations because the Superior Court had denied his October 2005 habeas petition as untimely under Clark. The Magistrate Judge found that the 2005 petition was improperly filed in California state court, and did not statutorily toll AEDPA's one-year statute of limitations, which expired on November 16, 2005. Trigueros timely appeals the district court's denial of his habeas petition.
We have jurisdiction under 28 U.S.C. § 1294(1). We review de novo a district court's dismissal of a habeas petition on timeliness grounds. White v. Martel, 601 F.3d 882, 883 (9th Cir.), cert. denied ––– U.S. ––––, 131 S.Ct. 332, 178 L.Ed.2d 146 (2010).
I. Motion for Judicial Notice
Trigueros asks us to take judicial notice of documents from his state-court habeas petition, including his petition to the Superior Court, the California Supreme Court's letter to the State requesting informal briefing, the briefing the parties submitted to the California Supreme Court, and the California courts' orders. The State argues that the motion for judicial notice should be denied because Trigueros, representing himself pro se, failed to lodge the state-court record with the district court, and in any event, the documents are irrelevant. We grant Trigueros's motion.1
Generally, we consider only the district court record as developed before appeal. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir.2003). Nonetheless, we may take judicial notice on appeal. Fed.R.Evid. 201(f) (); see also United States v. Camp, 723 F.2d 741, 744 n. ** (9th Cir.1984). We retain discretion to take judicial notice of documents “not subject to reasonable dispute.” Fed.R.Evid. 201(b). In particular, we “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992); see also Smith v. Duncan, 297 F.3d 809, 815 (9th Cir.2002) (), abrogation on other grounds recognized by Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir.2007).
Here, Trigueros submitted documents on appeal from the proceedings before the California courts that are “directly related” to the timeliness of his state habeas petitions. The Superior Court stated that Trigueros's petition was untimely, and the Court of Appeal denied his subsequent petition. Then, prior to denying Trigueros's petition, the California Supreme Court requested briefing from the State on the merits of his petition, and the State briefed the timing issue, to which Trigueros replied in his briefing. In short, Trigueros seeks judicial notice of documents directly related to the timeliness of his habeas filings. Accordingly, we take judicial notice of these documents in determining whether Trigueros's federal habeas petition was statutorily tolled.
II. Statutory TollingA. Waiver
The State first argues that Trigueros waived his statutory tolling argument. Specifically, it contends that Trigueros did not raise his current theory of statutory tolling—that the California Supreme Court overruled the Superior Court's finding of untimeliness—before the district court. We disagree with the State's reading of the record, and conclude that Trigueros has sufficiently argued that his federal habeas petition was timely filed due to statutory tolling of AEDPA's one-year statute of limitations.
Ordinarily, arguments not raised before the district court are waived on appeal. White, 601 F.3d at 885. However, even if the petitioner did not present a statutory tolling argument to the district court, the petitioner may raise it on appeal under certain limited circumstances. See Lott v. Mueller, 304 F.3d 918, 925 (9th Cir.2002) (). In particular, if “the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court,” the petitioner may raise it for the first time on appeal. Id. (internal quotation marks omitted).
Here, Trigueros represented himself pro se when he filed his response to the government's timeliness challenge before the district court. “Prisoner pro se pleadings are given the benefit of liberal construction.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.2010). In his self-styled “traverse,” Trigueros argued before the district court that he had timely filed his petitions with the California courts, and that his federal petition was therefore timely tolled. He also argued the merits of the Superior Court's ruling on untimeliness. While he does not address the precise legal theory before us, the same set of operative facts are in play here, and he specifically contended before the district court that he was entitled to statutory tolling.
Moreover, Trigueros's argument on appeal—that the California Supreme Court's order overruled the Superior Court's timeliness...
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