CA10 — memorandum disposition

Titsworth v. Mullin, No. 08-7057 — The court denied a COA to a pro se habeas petitioner.  The § 2254 petition was untimely.  The petitioner pleaded guilty to petit larceny and did not appeal.  Five years after the conviction became final, the § 2254 petition was filed.  There was no statutory tolling because he did not file any sort of postconviction motion until four years after the conviction became final.

Hebner v. McGrath (CA9)

Hebner v. McGrath, No. 06-16533 — The court affirmed the denial of a motion to amend a 2254 petition to add a claim that would have been untimely without relation back to the date of the original petition.

The petitioner had been charged with rape, attempted rape, assault by force likely to produce great bodily injury, and false imprisonment.  Testimony from the victim of another, uncharged sexual assault by the petitioner was admitted under Cal. Evid. Code § 1108, allowing the jury to draw certain inferences about the petitioner’s propensity to commt the rapes with which he was presently charged.  The jury was instructed that it could find that the petitioner committed the uncharged rapes by a preponderance of the evidence.  The petitioner was convicted and sentenced to 48 years in prison.

In his original § 2254 petition, the petitioner alleged that admitting the evidence of the uncharged rape violated his due process rights.  After the AEDPA limitations period had expired, he sought to add a claim challenging the jury instruction.  The State conceded that, if the district court had allowed him to amend his petition, it would have succeeded in light of Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2003).  Under Mayle v. Felix, 545 U.S. 644 (2005), however, the petitioner could not amend unless he could demonstrate that the jury instruction claim stemmed from a “common core of operative facts” as another claim already properly before the court.  The court reasoned that it did not, because his other claim challenged the introduction of evidence during the trial rather than the instructions to the jury at the end of the trial.  These were discrete events at his trial, and thus the district court did not abuse its discretion in denying the motion to amend.

Lopez v. U.S. (CA8)

Lopez v. U.S., No. 07-3685 (CA8) — The petitioner pleaded guilty to a drug distribution consipracy and firearms charges.  He received a 135-month sentence, but did not file a direct appeal.

He filed a 2255 motion, asserting that counsel was ineffective for failing to file a direct appeal even though he asked counsel to do so.  The government sought dismissal, noting it was filed 15 months after the petitioner’s conviction became final.  The district court denied the motion as untimely, ruling that the petitioner was not diligent in discovering that counsel had not filed his direct appeal.

The petitioner had alleged that he was unable to communicate with anyone during the first five months of his incarcertaion, due to “repeated transfers” between prisons.  He then alleged that he assumed an appeal had been filed, and all he had to do was wait.  After some time, he began to suspect that no appeal had been filed.  He then contacted his trial lawyer and asked for a copy of his file.  The attorney sent him a copy of the judgment and commitment order.  By this time, the time to file a 2255 motion had passed.

“These allegations are not indicative of a reasonably diligent quest for information.”  The court faulted the petitioner for not alleging why he was not able to contact anyone during the first months of his sentence.  In fact, the court noted, the petitioner waited a year before even contacting the attorney in question.  “Moreover, there is every reason to believe that more prompt action on [the petitioner's] part would have revealed counsel’s failure to notice an appeal more than one year before he filed his motion.”  The fact of the pending appeal was a matter of public record (how was he supposed to know?) that a duly diligent person in the petitioner’s shoes could have discovered before the one-year period ended.

CA10 — memorandum dispositions

Varela v. Moya, No. 08-2043 — The court denied a COA on three claims relating to a conviction stemming from a fatal gang-related shooting in New Mexico.

The petitioner had been convicted of felony murder, the predicate felony for which was “shooting at a dwelling,” which is either a fourth-, third-, or second-degree felony depending on the magnitude of harm short of death caused.  He argued that death was not “great bodily harm,” and thus was not guilty of the underlying felony.  But causing no harm at all as a result of the shooting still resulted in a conviction for the predicate felony, and thus there was sufficient evidence to sustain the felony-murder conviction.

The petitioner also challenged the admission of a coconspirator’s pretrial statement at trial as violating his confrontation rights.  But since the coconspirator testified at trial, there was no violation.  Hence trial counsel was also not ineffective for failing to raise the confrontation issue.

Long v. Peterson, No. 07-6299 (juvenile LWOP) — The court affirmed the dismissal of a 2254 petition as untimely.  In the district court, the petitioner had conceded he had filed late, but argued that the court should consider his petition on the merits in order to avoid a fundamental miscarriage of justice.  The petitioner also conceded that he did cause the death of another person.  The state courts had already rejected his affirmative defenses to the homicide charge, and the petitioner introduced no new evidence that could change the verdict.

On appeal, the court observed that equitable tolling was necessary to save the petition.  The “equitable tolling” the court considered was the possibility that the petitioner was actually innocent, which the court took to mean legal innocence, not factual innocence.  Since the petitioner conceded that his actions caused the death of the victim, he could not overcome this hurdle.  Moreover, the evidence that he lacked the mens rea for the homicide crime had been considered and rejected by the state courts.

Finally, the court declined to reach three uncertified issues because the petitioner failed to raise them in his objections to the magistrate’s report and recommendation.  That failure constituted a waiver (the court probably means forfeiture) of the issues.

Johnson v. Knowles (CA9)

Johnson v. Knowles, No. 07-15221 (CA9) — Does a fundamental miscarriage of justice excuse the late filing of a 2254 petition if the petitioner does not allege he is actually innocent?  No, says the Ninth Circuit.

The miscarriage-of-justice framework comes from Schlup v. Delo, 513 U.S. 298 (1995).  Although Schlup dealt with a claim that was procedurally defaulted, the court assumed without much discussion that a proper showing under Schlup could excuse an untimely habeas petition.  But, after evaluating decisions from both the Supreme Court and other circuits, the court reasoned that the Schlup exception was reserved for cases in which the petitioner protested his innocence.  In this case, the petitioner expressly conceded guilt.  Thus, he could not overcome the statute of limitations.

CA5 — memorandum disposition

Whitlock v. Quarterman, No. 06-11066 (CA5) — The petitioner had been convicted of aggravated robbery and aggravated assault in separate proceedings.  He had already challenged the robbery conviction in prior habeas proceedings, and so the Fifth Circuit rejected that this petition, which challenged the assault conviction, was second or successive.  Nevertheless, the petition was untimely.  He was not entitled to statutory tolling because his petition was not “properly filed” under Texas law.  There was no state-created impediment to filing, and the petitioner was not entitled to equitable tolling.

Wainwright v. Sec’y, Fla. Dep’t of Corr. (CA11)

Wainwright v. Sec’y, Fla. Dep’t of Corr., No. 06-13453 (CA11, per curiam) — The court affirmed the dismissal of the petitioner’s 2254 petition as untimely.  His conviction became final on May 18, 1998, when the U.S. Supreme Court denied his petition for certiorari.  He filed his first petition for state post-conviction relief 359 days later, on May 14, 1999, leaving him six days after the period of statutory tolling ended for him to file a federal habeas petition.  He filed the 2254 petition 12 days after the period of statutory tolling ended, on March 29, 2005.  The district court rejected the petitioner’s arguments for equitable tolling, and granted summary judgment in favor of the state.  The petitioner filed a timely Rule 59(e) motion, which the district court also denied.  The petitioner filed a notice of appeal on June 9, 2006, less than 30 days after the district court denied the Rule 59(e) motion.

The Eleventh Circuit certified four issues for appeal.  Two of these issues concerned the court’s appellate jurisdiction, which the court resolved in favor of the petitioner.  The other two issues concerned the availability of equitable tolling to the petitioner.

The Eleventh Circuit asked, “Does the confusion around the statute of limitations issue — i.e., the split in the circuits with respect to whether the statute of limitations is tolled during the period after the state court denies collateral relief and before the time for filing certiorari to the [U.S.] Supreme Court expires — constitute an extraordinary circumstance entitling a petitioner to equitable tolling?  Should we decline to consider this issue because it was raised for the first time on appeal?  Is equitable tolling otherwise warranted in this case?”

The court held that the petitioner did not preserve the circuit-split issue for appeal because he did not raise it in the district court.  It also ruled that the contention lacked merit because (1) at the time the Florida courts had finally denied his state post-conviction petitions, it was settled law in the Eleventh Circuit that the period of statutory tolling did not extend to the time available for seeking certiorari review in the U.S. Supreme Court, and (2) in any event, Lawrence v. Florida, 127 S. Ct. 1079 (2007), resolved that question against the petitioner.

The court also held that the Florida Supreme Court’s failure to send the notice of the denial of the petitioner’s motion for rehearing to his attorney’s correct address was not an extraordinary circumstance entitling him to equitable tolling.  The attorney had changed his address with The Florida Bar, but not with the Florida Supreme Court, and the court sent the notice to the address it had on file.  The Florida Supreme Court had no obligation to check its address list against The Florida Bar’s before sending the notice to the petitioner’s state post-conviction attorney.  This “attorney error is not an extraordinary circumstance warranting equitable tolling.”  Accordingly, the court affirmed the district court’s determination that the petitioner’s 2254 petition was untimely.