Bardo v. Clark

Background

Mario Joseph Bardo, a state prisoner, filed a federal petition under 28 U.S.C. § 2254 challenging his state conviction. A Santa Clara County Superior Court jury found him guilty of two counts of sexual penetration of a child age 10 or younger and one count of committing a forcible lewd or lascivious act on a child under age 14. The state trial court also found true a prior strike conviction and imposed an indeterminate term of 15 years to life, consecutive to an eight-year determinate term. The California Court of Appeal affirmed the conviction, and the California Supreme Court denied review.

Bardo’s original federal petition, filed with the assistance of counsel, raised one claim: that he was deprived of his Fourteenth Amendment right to testify in state court. After the court reopened the case to allow him to proceed without a lawyer and oppose dismissal, Bardo filed an amended petition. The amended petition raised two different claims: that an erroneous general-intent jury instruction violated due process, and that the trial court improperly excluded evidence concerning the victim’s prior molestation, sexual knowledge, and alleged prior false accusation.

The court treated the response to the amended petition as not opposing Bardo’s request to file it and made the amended petition the operative petition. The original petition’s previously unexhausted claim was considered waived because it was not included in the amended petition.

Statute of limitations

The court applied the Antiterrorism and Effective Death Penalty Act’s one-year deadline for state prisoners seeking federal habeas review. Because the California Supreme Court denied review on March 28, 2018, Bardo’s conviction became final 90 days later, on June 26, 2018. Without a valid extension of the deadline, he had until June 26, 2019, to file a timely federal petition. He filed the amended petition on October 13, 2020.

The court found that statutory tolling did not apply because Bardo had not sought state post-conviction or other collateral review. His original federal petition also did not pause the deadline because a federal habeas petition is not a state post-conviction application.

The court also rejected equitable tolling, which is an extension of a deadline based on diligent pursuit of rights and an extraordinary circumstance that prevented timely filing. Bardo attributed the delay to former counsel’s handling of his claims and to his lack of access to his state court files. The court found that he had not shown that counsel’s actions caused the late filing or made timely filing impossible. It also noted that he waited approximately eight months after the case was reopened before moving to amend and that the amended petition did not appear to require the entire state trial record.

The court further held that the amended claims could not relate back to the original petition. Relation back can allow a late amendment when the new claims arise from the same conduct or core facts as the original pleading. The court found that the original right-to-testify claim involved facts different in time and type from the jury-instruction claim and the claim concerning excluded evidence. It therefore concluded that the amended petition was untimely in its entirety.

Exhaustion

The court separately addressed the requirement that a state prisoner present each federal habeas claim to the highest available state court before seeking federal relief. The court accepted the respondent’s position that the jury-instruction claim had been presented to the California Supreme Court, but that the excluded-evidence claim had not. Bardo did not dispute that point.

Because one claim remained unexhausted, the court described the petition as containing both exhausted and unexhausted claims. It stated that Bardo ordinarily could seek a stay to return to state court and exhaust the unexhausted claim, but found that a stay would be futile because the amended petition was already untimely. The court therefore dismissed the amended petition for failure to exhaust all claims before filing the federal action, in addition to dismissing it as untimely.

Disposition

The court granted the respondent’s motion to dismiss the amended petition. It granted Bardo’s motion to file the amended petition and granted his motion for an extension of time, deeming his opposition timely. It denied the respondent’s first motion to dismiss as moot because the amended petition superseded the original petition. The court also denied a certificate of appealability, finding that Bardo had not shown that reasonable judges would debate whether the petition stated a valid constitutional claim or whether the court’s procedural ruling was correct. The order terminated Docket Nos. 13, 46, 49, and 51.