Espinoza v. Montgomery

Northern District of California, cand-4:2014-cv-05376

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; AND DENYING CERTIFICATE OF APPEALABILITY by Judge Yvonne Gonzalez Rogers granting {{5}} Motion to Dismiss

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 CARLOS ESPINOZA, 4 Case No. 14-cv-05376-YGR (PR) Petitioner, 5 ORDER GRANTING RESPONDENT'S v. MOTION TO DISMISS; AND DENYING 6 CERTIFICATE OF APPEALABILITY W. L. MONTGOMERY, Warden, 7 Respondent. 8 9 Petitioner Carlos Espinoza, a state prisoner, filed the present petition for a writ of habeas 10 corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition on abstention 11 grounds. Dkt. 5. Petitioner opposes the motion, and Respondent has filed a reply to the 12 opposition. Dkts. 6, 7. Northern District of California United States District Court 13 For the reasons discussed below, the motion to dismiss is GRANTED. 14 BACKGROUND 15 In 2012, a Monterey County jury convicted Petitioner of first degree murder, attempted 16 premeditated and deliberate murder, and active participation in a criminal street gang. Dkt. 1-1 at 17 2.1 The jury also found that Petitioner committed the murder and attempted murder for the benefit 18 of a criminal street gang, and that in committing the aforementioned crimes, he personally used 19 and intentionally discharged a firearm and proximately caused great bodily injury or death. Id. 20 On June 21, 2012,2 the trial court sentenced Petitioner, who was seventeen years old at the 21 time he committed the offenses, to an aggregate prison term of eighty-five years to life. Id. 22 On direct appeal, Petitioner contended: (1) the gang crime and gang enhancements must 23 be reversed because the opinion of the gang expert, Salinas Police Officer Robert Zuniga, was 24 based in part on testimonial hearsay, in violation of Petitioner's Sixth Amendment right to 25 confrontation; (2) the judgment must be reversed due to juror misconduct because one juror 26 1 27 Page number citations refer to those assigned by the Court's electronic case management filing system and not those assigned by Petitioner. 2 28 Respondent incorrectly states that the date of sentencing was on June 21, 2013. Dkt. 5 at 2. The correct date is June 21, 2012. Dkts. 1 at 1, 1-2 at 8. 1 visited the scene and told the other jurors what he observed; and (3) remand for resentencing was 2 required because the sentence of eighty-five years to life constitutes cruel and unusual punishment 3 in light of the fact he was a juvenile at the time he committed the offense. Id. at 2-3. 4 On January 31, 2014, the state appellate court agreed with Petitioner's third claim, and 5 reversed the judgment and remanded for resentencing in light of Miller v. Alabama, __ U.S. __, 6 132 S. Ct. 2455 (2012), and People v. Caballero, 55 Cal. 4th 262 (2012). Id. at 3, 32. In all other 7 respects, the judgment was affirmed. 8 Both sides petitioned for review to the California Supreme Court. Dkt. 5 at 10. Petitioner 9 challenged the state appellate court's reasoning and conclusions on his first two claims: (1) the 10 violation of his Sixth Amendment right to confrontation; and (2) the alleged juror misconduct. 11 Dkt. 1-2 at 2-33. Petitioner's petition for review was denied "without prejudice to any relief to 12 which defendant might be entitled after [the state supreme] court decides People v. Sanchez, Northern District of California United States District Court 13 S216681." Dkt. 5 at 13. Meanwhile, the People of the State of California ("People") petitioned 14 for review on the third claim, which had prompted the state appellate court to reverse and remand 15 the case for resentencing. Id. at 23-32. The People's petition for review was granted and the 16 matter has been "deferred pending consideration and disposition of a related issue in In re 17 Alatriste, S214652 and In re Bonilla, S21490 (see Cal. Rules of Court, rule 8.512(d)(2)), or 18 pending further order of the court." Id. at 10. This Court has conducted an independent search of 19 the records on the California Supreme Court's official website in an effort to check on the status of 20 the People's petition for review and discovered that this matter remains pending. See People v. 21 Espinoza, S216994. 22 Petitioner had also filed a state habeas petition, in which he argued that he was deprived of 23 the effective assistance of trial counsel because his attorney failed to object to the gang expert's 24 opinion testimony. Dkt. 1-1 at 3. On January 31, 2014, the state appellate court denied 25 Petitioner's state habeas petition. Id. 26 On May 14, 2014, the California Supreme Court also denied Petitioner's state habeas 27 petition, which raised the same ineffective assistance of counsel claim. Dkt. 1 at 4. 28 Petitioner then filed the present petition on December 8, 2014. 2 1 DISCUSSION 2 In the instant petition, Petitioner raises three claims for relief: (1) the violation of his Sixth 3 Amendment right to confrontation stemming from the gang expert's opinion testimony; (2) the 4 alleged juror misconduct; and (3) ineffective assistance of trial counsel for failing to object to the 5 gang expert's opinion testimony. Dkt. 1. All claims were presented to the California Supreme 6 Court. 7 Respondent moves to dismiss the petition on abstention grounds, based on the California 8 Supreme Court's denial of discretionary review without prejudice to any relief to which Petitioner 9 might be entitled after the state supreme court decides People v. Sanchez, S216681. Dkt. 5 at 13. 10 I. COMPARISON OF PETITIONER'S AND SANCHEZ'S CASES 11 In People v. Sanchez, the California Supreme Court is addressing a confrontation issue, 12 which is substantially similar to the one Petitioner raised (on direct appeal and in his federal Northern District of California United States District Court 13 petition). Specifically, the Sanchez case presents the following issue: Was Sanchez's Sixth 14 Amendment right to confrontation violated by the gang expert's reliance on testimonial hearsay? 15 Dkt. 5 at 15. According to the California Supreme Court's official website, this matter remains 16 pending. See People v. Sanchez, S216681. 17 In the present case, Petitioner claims that the gang crime and gang enhancements must be 18 reversed because the gang expert's opinion was based in part on testimonial hearsay, in violation 19 of Petitioner's Sixth Amendment right to confrontation. Dkt. 1 at 8-14. As mentioned above, 20 Petitioner had presented this claim to the California Supreme Court on direct review. Dkt. 1-2 at 21 2-33. While the California Supreme Court denied discretionary review, the denial was without 22 prejudice to any relief to which Petitioner might be entitled after the state supreme court decides 23 People v. Sanchez, S216681. Dkt. 5 at 13. 24 II. MOTION TO DISMISS 25 In the instant motion to dismiss, Respondent argues that because it is possible the state 26 supreme court may issue an opinion in Sanchez that is favorable to Petitioner, and because the 27 nature of that court's denial of review of Petitioner's confrontation claim leaves open the 28 opportunity for Petitioner to once again seek review of his claim, this Court should abstain from 3 1 reaching the merits of the petition under Younger v. Harris, 401 U.S. 37 (1971). 2 Under principles of comity and federalism, a federal court should not interfere with 3 ongoing state criminal proceedings by granting injunctive or declaratory relief absent 4 extraordinary circumstances. Id. at 43-54. The rationale of Younger applies to non-criminal 5 proceedings when important state interests are involved. See Middlesex Cnty. Ethics Comm. v. 6 Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); SJSVCCPAC v. City of San Jose, 546 F.3d 7 1087, 1092 (9th Cir. 2008). Younger abstention is required when (1) state proceedings, judicial in 8 nature, are pending; (2) the state proceedings involve important state interests; and (3) the state 9 proceedings afford adequate opportunity to raise the constitutional issue. Middlesex, 457 U.S. at 10 432. The Ninth Circuit has articulated a fourth requirement that "the federal court action would 11 enjoin the state proceeding or have the practical effect of doing so, i.e., would interfere with the 12 state proceeding in a way that Younger disapproves." SJSVCCPAC, 546 F.3d at 1092 (citations Northern District of California United States District Court 13 omitted). Although abstention is the exception, not the rule, see World Famous Drinking 14 Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), Younger and its companion 15 cases generally require a federal district court to abstain from granting injunctive relief when state 16 criminal actions or certain categories of state civil or administrative proceedings are pending 17 against the federal plaintiff at the time he or she commences the federal action. See Pennzoil Co. 18 v. Texaco, Inc., 481 U.S. 1, 10-18 (1987). 19 Abstention may be inappropriate in the extraordinary circumstance that: (1) the party 20 seeking relief in federal court does not have an adequate remedy at law and will suffer irreparable 21 injury if denied equitable relief, see Mockaitis v. Harcleroad, 104 F.3d 1522, 1528 (9th Cir. 1997) 22 overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997) (citing Younger, 401 23 U.S. at 43-44); or (2) the state tribunal is incompetent by reason of bias, see Gibson v. Berryhill, 24 411 U.S. 564, 577-79 (1973). 25 The rationale of Younger applies throughout appellate proceedings, requiring that state 26 appellate review of a state court judgment be exhausted before federal court intervention is 27 permitted. See Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11 (1975). Moreover, a petitioner who 28 intends to seek federal habeas corpus relief must await the outcome of his state court appeal before 4 1 doing so; that appeal may result in reversal of the petitioner's conviction on some other ground, 2 thereby mooting the claims raised in his federal habeas petition. See Sherwood v. Tomkins, 716 3 F.2d 632, 634 (9th Cir. 1983) (citations omitted). 4 Here, the Court finds Respondent's abstention argument persuasive because all the 5 aforementioned requirements for Younger abstention exist in this case, and this case cannot be 6 classified under either of the above extraordinary circumstances where abstention is inappropriate. 7 As to the first requirement, there exist state proceedings that are pending, albeit in Sanchez, 8 a case involving a different petitioner.3 However, in Sanchez, the state supreme court is 9 considering a confrontation claim that is identical to Petitioner's claim. The state supreme court's 10 denial of review of Petitioner's confrontation claim has left open the opportunity for Petitioner to 11 once again seek review of his claim once Sanchez is decided. 12 As to the second requirement, the state proceedings in Sanchez and application of the Northern District of California United States District Court 13 outcome to Petitioner's case, involve the important state interest of correcting violations of federal 14 rights arising from a state court conviction. 15 The third requirement for Younger abstention is met because the state proceedings in 16 Sanchez, as well as California's appellate process, afford an opportunity for Petitioner to raise his 17 constitutional challenge. 18 Finally, the fourth requirement is met because federal court action would interfere with the 19 state proceedings in a way that Younger disapproves. Specifically, abstention is appropriate 20 21 3 Arguably, Petitioner's direct appeal actually remains pending in the California Supreme 22 Court because the People's appeal from the state appellate court's opinion reversing and remanding Petitioner's case for sentencing is being deferred pending the outcome of two cases, In 23 re Alatriste, S214652 and In re Bonilla, S21490. See People v. Espinoza, S216994. Therefore, Respondent also argues that Petitioner's claims are unexhausted. Dkt. 7 at 3 footnote 1 (citing 24 Murphy v. Wilson, 409 F.2d 840, 841 (9th Cir. 1969) (exhaustion requirement not satisfied until the state appeal proceedings have been completed and a final state judgment has been entered)). 25 Respondent acknowledges that the issue on review involves only sentencing, but argues that this fact is without consequence. Id. (citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) 26 ("When. . . an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even 27 where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts.") (emphasis added)). The Court need not address Respondent's alternative exhaustion 28 argument because it finds that dismissal is warranted based on the abstention argument, as further explained in this Order. 5 1 because if the Sanchez decision is favorable to Petitioner and if he seeks relief from the state 2 supreme court, then this could result in the reversal of Petitioner's gang crime and gang 3 enhancements, thus mooting the necessity for federal habeas review of this claim. 4 Accordingly, Respondent's motion to dismiss the petition on abstention grounds is 5 GRANTED. Dkt. 5. Therefore, the instant petition is DISMISSED under the principle of federal 6 abstention set forth in Younger. The dismissal is without prejudice to filing a new petition, as 7 explained below. 8 The Court will now address one final issue dealing with timeliness of the instant petition. 9 In his opposition, Petitioner seems to be concerned about his claims being barred from federal 10 review either by being found to be barred for untimeliness under 28 U.S.C. § 2244(d)—the statute 11 of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")—or 12 by "any procedural bars." Dkt. 6 at 2. Respondent counters that timeliness is not an issue because Northern District of California United States District Court 13 Petitioner's direct appeal is still pending. Dkt. 7 at 4. This Court agrees. Under AEDPA, a state 14 prisoner ordinarily has one year from the date his conviction becomes final to file a federal habeas 15 corpus petition. 28 U.S.C. § 2244(d)(1)(A). Because Petitioner's direct appeal is still pending, 16 finality will not occur in this case until the California Supreme Court has adjudicated the People's 17 petition for review, and Petitioner either seeks certiorari to the United States Supreme Court or the 18 time for doing so expires. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Moreover, 19 this Court further notes that if Petitioner's case is remanded for resentencing, finality does not 20 occur until all appeals are taken from the resentencing, or the time for doing so expires. See 21 Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (holding that the AEDPA limitations period does 22 not begin until both conviction and sentence "'became final by the conclusion of direct review or 23 the expiration of the time for seeking such review'"). 24 In any event, the Court has concluded above that the instant petition should be dismissed 25 on abstention grounds. The two matters are not related—whether dismissal is appropriate on 26 abstention grounds does not depend at all upon the existence or non-existence of statute of 27 limitations problems. Petitioner's argument of any potential statute of limitations problem does 28 not provide a reason for this Court to deny Respondent's motion to dismiss. What is important is 6 1 that Petitioner is aware of AEDPA's one-year limitations period and thus he should promptly file 2 his next habeas petition in federal court after he receives a decision from the California Supreme 3 Court to try to avoid any statute of limitations problem. 4 III. CERTIFICATE OF APPEALABILITY 5 The federal rules governing habeas cases brought by state prisoners have been amended to 6 require a district court that dismisses or denies a habeas petition to grant or deny a certificate of 7 appealability ("COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. 8 foll. § 2254 (effective December 1, 2009). 9 For the reasons stated above, Petitioner has not shown "that jurists of reason would find it 10 debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 11 U.S. 473, 484 (2000). Accordingly, a COA is DENIED. 12 CONCLUSION Northern District of California United States District Court 13 For the reasons outlined above, the Court orders as follows: 14 1. Respondent's motion to dismiss the petition is GRANTED. Dkt. 5. The petition is 15 hereby DISMISSED without prejudice to filing a new petition for a writ of habeas corpus. 16 Petitioner is cautioned not to file an amended petition in this action and not to use the case number 17 for this action because this action is being closed as of today's date. When he files a new petition, 18 he should put no case number on the first page, and should submit it with the $5.00 filing fee or a 19 completed in forma pauperis application. At that time, the Court will give the new petition a new 20 case number. 21 2. A certificate of appealability is DENIED. Petitioner may seek a certificate of 22 appealability from the Ninth Circuit Court of Appeals. 23 3. The Clerk of the Court shall enter judgment, terminate all pending motions, and 24 close the file. 25 4. This Order terminates Docket no. 5. 26 IT IS SO ORDERED. 27 Dated: May 27, 2015 ______________________________________ YVONNE GONZALEZ ROGERS 28 United States District Judge 7