1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE D. MESARAMOS, Case No. 22-cv-05486-WHO (PR)

Petitioner, 8 ORDER OF DISMISSAL v. 9

10 RICK HILL, Dkt. No. 9 Respondent. 11

12 13 INTRODUCTION 14 Petitioner Jose D. MesaRamos seeks federal habeas relief under

15 from his California state convictions and for the state’s denials of his resentencing 16 petitions. As respondent points out in his motion to dismiss, the habeas petition fails to 17 state a claim for relief. His claim that the murder liability theory under which he was 18 convicted is now invalid is without factual support; his claim that his life sentence without 19 parole violates Supreme Court precedent is also without factual support; and his claims 20 that he is entitled to sentencing reductions or a hearing under youth offender laws are state 21 law claims that were rejected by the state courts. Furthermore, to the extent that the 22 petition challenges his 2009 state convictions (other than the murder liability theory and 23 resentencing claims), it is untimely. MesaRamos had until September 26, 2013 to file a 24 timely federal habeas petition, but he did not file the present federal habeas action until 25 2022. He is not entitled to any statutory tolling because his state habeas petitions were 26 filed after the September 26, 2013 deadline, and he has not made any contention that he is 27 entitled to equitable tolling. As discussed below, the motion to dismiss is GRANTED and 1 BACKGROUND 2 In 2009, an Alameda County Superior Court jury convicted MesaRamos of first 3 degree murder (

), two counts of attempted murder (id. §§ 187, 4 664), and auto theft (

(a)). (Mot. to Dismiss (MTD), State 5 Appellate Opinion, Dkt. No. 9-1 at 2-3.)1 Various sentencing enhancement allegations 6 were found true. (Id. at 3.) A sentence of life in prison without the possibility of parole, 7 two consecutive determinate terms of seven years, two consecutive terms of 25 years to 8 life, a 20-year term for the firearm enhancements, plus an additional two-year term, was 9 imposed. (Id.) His convictions were affirmed on direct appeal (id.), and the state supreme 10 court denied his petition for review on June 27, 2012, (State Supreme Court Order, Dkt. 11 No. 9-2 at 2). Ninety days later, on September 25, 2012, his convictions became final. 12 Bowen v. Roe,

(9th Cir. 1999). 13 MesaRamos had until September 26, 2013, to file a habeas petition within 14 AEDPA’s one-year limitations period. The pending habeas action was not filed until 15 2022. His first state habeas petition was not filed until 2018.2 (MTD, Dkt. No. 9 at 2.) 16 His other petitions for resentencing and for other forms of relief were filed in 2019 and 17 after. (Id.) 18 After I issued an Order to Show Cause regarding the petition, respondent filed the 19 pending motion to dismiss, which is the subject of this Order. In his reply to petitioner’s 20 opposition, respondent notes the following:

21 On the subject of timeliness, petitioner’s rejoinder is unclear. As we noted 22 in our motion to dismiss, petitioner states that his petition challenges his 2009 judgment of conviction, and has styled his claims consistently. Dkt. 9 at 3; 23 Dkt. 1 at 1-2. In his opposition, petitioner states that while his petition 24 1 People v. Ledesma, et al., No. A125441,

(Cal. Ct. App. April 10, 25 2012).

26 2 Respondent asserts that the first habeas petition was filed in 2018, but I do not see in the record a copy of the filing to which he refers. However, MesaRamos does not dispute that 27 2018 was the year in which he filed his first state petition for collateral review. Also, the challenges his ‘original conviction,’ he ‘does not challenge the core of his 1 conviction from the jury finding,’ but instead ‘the retroactive application of 2 Senate Bills 1437 and 775 in order to receive the benefit of a lesser sentence from not being the actual killer.’ Dkt. 12 at 2. 3 (Reply, Dkt. No. 9 at 2.) 4 DISCUSSION 5 i. Merits 6 As grounds for federal habeas relief, MesaRamos claims that (a) the murder liability 7 theory under which he was convicted is now invalid; (b) his life sentence violates the 8 prohibition against mandatory life sentences for persons under the age of eighteen; (c) he is 9 entitled to a sentence reduction owing his youth offender status; and (d) he is entitled to a 10 youth offender hearing. None of these claims has merit. 11 a. Natural and Probable Consequences Theory 12 MesaRamos claims that he suffered a miscarriage of justice because he was 13 prosecuted under the now-discarded natural and probable consequences (felony murder) 14 theory of liability.3 (Pet., Dkt. No. 1 at 5, 7-15.) This claim is without merit; as pointed 15 out by the state courts, he was not convicted under that theory of liability but rather under 16 the still valid theory of aiding and abetting. (State Appellate Opinion Regarding 17 Resentencing, Dkt. No. 9-4 at 2, 14.) Because there is no factual basis for his claim, the 18 state’s rejection of this claim was reasonable, and is entitled to AEDPA deference. The 19 claim is DENIED. 20 b. Reduction of Life Without Parole Sentence 21 MesaRamos claims that he is entitled to a reduction of his sentence of life without 22 parole under Miller v. Alabama,

(2012), which held that mandatory life 23 sentences for those under the age of eighteen violated the Eighth Amendment. (Pet., Dkt. 24 No. 1 at 15ff.) This claim is without merit because MesaRamos was eighteen when he 25 26 3 In 2019, California Senate Bill 1437 “made significant changes to the scope of murder 27 liability for those who were neither the actual killers nor intended to kill anyone, including 1 committed his crimes. (MTD, Dkt. No. 9 at 5; Alameda Superior Court Order, Dkt. No. 9- 2 8 at 52; Petition for Review, Dkt. No. 9-7 at 14.) Because there is no factual basis for his 3 claim, the state’s rejection of this claim was reasonable, and is entitled to AEDPA 4 deference. The claim is DENIED. 5 c. Youth Offender Hearing 6 MesaRamos claims that California Assembly Bill 1308 entitles him to a reduction 7 in his sentence or a youth offender hearing. (Pet., Dkt. No. 1 at 16, 25.) The state superior 8 court rejected this claim: “Defendant is not entitled to a youth offender parole hearing 9 because he was over 18 years of age at the time he committed the offenses and was 10 sentenced to life without the possibility of parole.” (State Superior Court Order, Dkt. No. 11 9-8 at 52.) The state appellate and supreme courts also rejected this claim. (Id. at 56, 60.) 12 Measramos’s claim, which is based entirely on state law, cannot succeed. Habeas 13 relief is not available for violations of state law, even if state law were erroneously 14 interpreted or applied. See Swarthout v. Cooke,

(2011). Moreover, the 15 state court’s decision that state law was correctly applied binds this federal habeas court. 16 Bradshaw v. Richey,

(2005). The state’s rejection of this claim was 17 reasonable, and is entitled to AEDPA deference. The claim is DENIED. 18 d. Franklin Hearing 19 MesaRamos claims that he is entitled to a youth offender parole hearing under 20 People v. Franklin,

(2016), a case that is based on the United States 21 Supreme Court Miller decision. (Pet., Dkt. No. 1 at 5, 24-27.) The state superior court 22 rejected this claim: “Defendant is not entitled to such a hearing.” (State Superior Court 23 Order, Dkt. No. 9-8 at 53.) The state appellate and supreme courts also rejected this claim. 24 (Id. at 56, 60.) 25 MesaRamos’s claim, which is based entirely on state law, cannot succeed. Habeas 26 relief is not available for violations of state law, even if state law were erroneously 27 interpreted or applied. See Swarthout v. Cooke,

(2011). And the state 1 Bradshaw v. Richey,

(2005). The state’s rejection of this claim was 2 reasonable, and is entitled to AEDPA deference. The claim is DENIED. 3 ii. Timeliness of the Petition 4 To the extent MesaRamos raises any claims regarding his 2009 state convictions 5 (other than the murder liability theory and resentencing claims), they are untimely. 6 a. Standard of Review 7 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 8 federal habeas petitions must be filed within one year of the latest of the date on which: 9 (1) the judgment became final after the conclusion of direct review or the time passed for 10 seeking direct review; (2) an impediment to filing an application created by 11 unconstitutional state action was removed, if such action prevented petitioner from filing; 12 (3) the constitutional right asserted was recognized by the Supreme Court, if the right was 13 newly recognized by the Supreme Court and made retroactive to cases on collateral 14 review; or (4) the factual predicate of the claim could not have been discovered through 15 the exercise of due diligence.

(d)(1). This one-year clock starts ticking 16 90 days after direct state review is final. “[W]hen a petitioner fails to seek a writ of 17 certiorari from the United States Supreme Court, the AEDPA’s one-year limitations period 18 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 19 expires.” Bowen,

. 20 b. Timeliness Without Tolling 21 MesaRamos had until September 26, 2013 — one year after his state convictions 22 became final — to file a timely habeas petition. The petition was filed in 2022, which is 23 well after the September 26, 2013 deadline. Unless MesaRamos is entitled to statutory or 24 equitable tolling, this federal habeas petition is untimely. 25 c. Statutory Tolling 26 For purposes of statutory tolling, the time during which a properly filed application 27 for state post-conviction or other collateral review is pending is excluded from the one- 1 were filed after AEDPA’s statute of limitations expired on September 26, 2013, they 2 cannot toll the limitation period. See Ferguson v. Palmateer,

(9th Cir. 3 2003). Section 2244(d)(2) cannot “revive” the limitation period once it has run (i.e., restart 4 the clock to zero); it can only serve to pause a clock that has not yet fully run. “Once the 5 limitations period is expired, collateral petitions can no longer serve to avoid the statute of 6 limitations.” Rashid v. Kuhlmann,

(S.D.N.Y. 1998). MesaRamos is 7 not entitled to statutory tolling. 8 d. Equitable Tolling 9 A federal habeas petitioner is entitled to equitable tolling if he can show “‘(1) that 10 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 11 stood in his way’ and prevented timely filing.” Holland v. Florida,

, 649 12 (2010) (quoting Pace v. DiGuglielmo,

(2005)); Miles v. Prunty, 187

(9th Cir. 1999)). Equitable tolling is not granted as a matter of course. In 14 fact, it is “unavailable in most cases.” Miranda v. Castro,

(9th Cir. 15 2002) (quoting Miles v. Prunty,

(9th Cir. 1999)). “[T]he threshold 16 necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 17 swallow the rule.”

(citation omitted). 18 MesaRamos makes no contention regarding equitable tolling, let alone offered 19 support for a contention that he has been acting diligently and that some extraordinary 20 circumstance prevented timely filing. He has not shown he is entitled to equitable tolling. 21 CONCLUSION 22 Respondent’s motion to dismiss the petition for failure to state a claim for relief and 23 as untimely is GRANTED. (Dkt. No. 9.) The petition is DISMISSED. 24 A certificate of appealability will not issue. MesaRamos has not shown “that jurists 25 of reason would find it debatable whether the petition states a valid claim of the denial of a 26 constitutional right and that jurists of reason would find it debatable whether the district 27 court was correct in its procedural ruling.” Slack v. McDaniel,

(2000). 1 || respondent, and close the file. 2 IT IS SO ORDERED. 3 Dated: November 6, 2023 “VWQe ly 7 ® 4 LLIAM H. ORRICK 5 United States District Judge 6 7 8 9 10 11 e 12

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