Hurtado v. Madden

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ramon HURTADO, Case No.: 21-cv-1386-CAB-AGS 4 Petitioner, REPORT AND RECOMMENDATION TO GRANT RESPONDENT’S 5 v. MOTION TO DISMISS (ECF 18) 6 Raymond MADDEN, Warden 7 Respondent. 8 9 Over three years after his state judgment became final, a prisoner filed a federal 10 habeas corpus petition. The warden moves to dismiss the petition as untimely. 11 BACKGROUND 12 On October 27, 2015, a jury convicted petitioner Ramon Hurtado of several gang- 13 related crimes including two drive-by shootings, two aggravated assaults, and two 14 attempted murders. See People v. Hurtado, No. D0D069791, 2017 WL 3205852, at *1 15 (Cal. Ct. App. July 28, 2017); (ECF 18-1, at 1). On appeal, Hurtado argued that his sentence 16 improperly included a firearms enhancement and that expert testimony at his trial was 17 inadmissible. (See ECF 19-6, at 3-4.) The California appellate court agreed with Hurtado’s 18 sentencing objection—and modified his sentence—but rejected his evidentiary argument. 19 (ECF 19-6, at 17-18.) Hurtado then petitioned the California Supreme Court for review, 20 again arguing that the expert testimony amounted to improper testimonial hearsay. (See 21 ECF 19-7, at 6-7.) The California Supreme Court denied his petition on October 11, 2017. 22 (ECF 19-8.) Hurtado did not seek review from the United States Supreme Court, nor did 23 he file a state habeas corpus petition. (See generally ECF 19.) 24 Over three years later, he filed this federal petition on August 2, 2021. (See ECF 1; 25 see also ECF 8 (later amended petition).) The Warden moved to dismiss it as untimely, 26 arguing that it was filed more than a year after Hurtado’s conviction became final. (See 27 ECF 18-1.) Despite the opportunity to do so, Hurtado never responded to that motion. (See 28 ECF 15.) 1 DISCUSSION 2 A state prisoner has one year from “the date on which the judgment became final” 3 to seek federal habeas relief. See 28 U.S.C. § 2244(d)(1)(A). Judgment becomes final upon 4 “the conclusion of direct review or the expiration of the time for seeking such review.” Id. 5 The time to seek review includes the 90-day “period within which a petitioner can file a 6 petition for a writ of certiorari from the United States Supreme Court.” Bowen v. Roe, 7 188 F.3d 1157, 1159 (9th Cir. 1999); see Sup. Ct. R. 13(1). 8 Thus, after the state Supreme Court declined to review Hurtado’s case on 9 October 17, 2017, his judgment became “final” 90 days later, on January 9, 2018. To be 10 timely, then, Hurtado had to file his federal habeas petition by January 2019. Yet he filed 11 in August 2021, more than two-and-a-half years after the federal filing deadline. (See 12 ECF 1.) So, unless some form of tolling forgives his lateness, his petition must be 13 dismissed. 14 A. Statutory Tolling 15 The limitations period is statutorily tolled during the period of any “properly filed 16 application for State post-conviction or other collateral review.” See 28 U.S.C. 17 § 2244(d)(2). But Hurtado did not file any state habeas petitions or other requests for state 18 collateral review. Without that, statutory tolling does not apply. See Sarmiento v. Pfeiffer, 19 No. 20-CV-0930-WQH-AGS, 2021 WL 71618, at *2 (S.D. Cal. Jan. 7, 2021) (“There is 20 no indication that Sarmiento filed any state habeas petitions, so statutory tolling is 21 unavailable.”), report and recommendation adopted, 2021 WL 603261 (S.D. Cal. Feb. 16, 22 2021). Hurtado’s last recourse then is equitable tolling. 23 B. Equitable Tolling 24 A petitioner qualifies for equitable tolling “only if he shows ‘(1) that he has been 25 pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 26 way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation 27 omitted). Hurtado offers no explanation for the delay in filing his habeas petition. As the 28 petitioner “bears the burden of showing that equitable tolling is appropriate,” he has failed 1 || to carry his burden to justify such tolling. See Espinoza-Matthews v. California, 432 F.3d 2 1021, 1026 (9th Cir. 2005) (citation omitted). 3 This Court has nonetheless scoured the record for any justification for equitable 4 ||tolling. Hurtado’s best argument may be ineffective assistance of counsel, which is a 5 || substantive issue he references in his petition. (See ECF 8, at 13.) “[E]gregious” attorney 6 ||negligence can amount to an extraordinary circumstance triggering equitable tolling. See 7 || Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003). But Hurtado’s argument focuses on 8 || counsel’s failure to raise an “objection” to prevent “the gang enhancement” at trial. (ECF 8, 9 || at 13.) Even crediting that argument, there’s nothing in counsel’s alleged misbehavior that 10 ||“‘stood in [Hurtado’s] way” for over two years to prevent his timely filing. See Holland, 11 U.S. at 649. And so, the Court sees nothing in this record to justify equitable tolling. 12 CONCLUSION 13 Because Hurtado’s habeas petition is untimely, the Court recommends that 14 ||respondent’s motion to dismiss be GRANTED. As Hurtado filed his petition over two- 15 || and-a-half years late and neither tolling doctrine applies, there are no reasonable jurists 16 || who would find this conclusion “debatable or wrong.” See Robertson v. Pichon, 849 F.3d 17 1173, 1187 (9th Cir. 2017) (citation omitted). So this Court also recommends that a 18 || certificate of appealability be denied. 19 Upon being served with a copy of this report, the parties have 14 days to file any 20 || objections. See 28 U.S.C. § 636(b)(1). Upon being served with an objection, the party 21 receiving it has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2). 22 Dated: August 11, 2022 23 —_~ _ Hon. ndrew G. Schopler United States Magistrate Judge 25 26 27 28