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SANCHEZ v. CAREY

August 22, 2005.

VICTOR HUGO SANCHEZ, Petitioner,
v.
TOM L. CAREY, Warden, et al., Respondent.



The opinion of the court was delivered by: JAN ADLER, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION AND PROCEDURAL BACKGROUND

On November 24, 1998 in the San Diego Superior Court, Victor Sanchez pleaded guilty to assault with a deadly weapon while personally inflicting great bodily injury (Cal. Penal Code §§ 245(a), 12022.7.) (Lodgment No. 1 at 3.) In exchange, the prosecutor dismissed the balance of the charges against Sanchez, including another assault charge, a battery charge, and two counts of making a terrorist threat. (Lodgment No. 1 at 8-10.) The parties stipulated that Sanchez would receive a seven-year term, and Sanchez waived his right to appeal. (Lodgment No. 1 at 3-4.) On January 15, 1999, Sanchez was sentenced to state prison for seven years. (Lodgment No. 1 at 1-2.) On August 12, 1999, Sanchez filed a request with the San Diego Superior Court for transcripts. The Superior Court denied Sanchez's request on September 27, 1999, because he had not stated sufficient factual grounds to warrant taxpayer expense to duplicate and provide him copies of the record. (Lodgments No. 2 and 3.)

  In May and July 2000, Sanchez requested that he be able to file a belated notice of appeal. (Lodgment No. 4.) The San Diego County Superior Court stamped these documents "Received," but did not file them, and on August 4, 2000, the court denied his motion on the grounds that he stipulated to his seven-year sentence and that he waived the right to file an appeal. (Lodgment No. 5 at 1-2.)

  After unsuccessfully requesting assistance from an indigent-appellate-defense organization (see Lodgment No. 6 at 2-4), Sanchez requested on November 15, 2000 that the California Court of Appeal permit him to file a belated notice of appeal. (Lodgment No. 6.) The Court of Appeal denied his request on December 1, 2000 on the grounds that he waived the right to file an appeal. (Lodgment No. 7.)

  Sometime in early February 2001, Sanchez apparently sent a letter to the California Court of Appeal regarding his conviction. The Court of Appeal replied to his request with a letter indicating that Sanchez should have been aware that he had stipulated to a seven-year term. (Lodgment No. 8 at 50; see Sanchez's Pet. at 2.) Respondent indicated that it has no record of Sanchez's letter or an independent record of the Court of Appeal's reply, and suggests that this means the court did not treat Sanchez's letter as a formal petition. (Respondent's Points and Authorities in Support of its Motion to Dismiss at 2-3.)

  In August 2004, Sanchez attempted to file a petition Court. writ of error coram nobis with the California Supreme Court. (Lodgment No. 8.) The court returned this petition to Sanchez unfiled on the grounds that it had no jurisdiction to grant coram nobis relief, which could only be granted by the court in which the original proceedings took place. (Lodgment No. 10.)

  Sanchez filed the current Petition for Writ of Habeas Corpus on September 30, 2004. On October 12, 2004, after an initial review of the petition, the Court ordered Respondent to file either a motion to dismiss by November 15, 2004 or an Answer by November 29, 2004. Instead of filing a response, on November 15, 2004, Respondent filed an application for a 30-day extension of time, which the Court granted on November 16, 2004. The Order directed Respondent to file a motion to dismiss by December 15, 2004 or an Answer by December 29, 2004.

  On December 10, 2004, Respondent filed a second application for an extension of time to file a response. The Court granted a second 30-day extension of time and directed Respondent to file a motion to dismiss by January 14, 2005 or an Answer by January 28, 2005. Respondent filed its Motion to Dismiss on January 14, 2005. Sanchez never filed a Response.

  On April 27, 2005, the Court issued an order requiring Sanchez to file supplemental briefing regarding the issue of equitable tolling by May 20, 2005. On June 22, 2005, the order was returned to the Court, stamped "Returned Mail. No Forwarding Address." After some investigation, the Court contacted Sanchez's parole officer, who said that Sanchez had been released on parole, but had never contacted his parole officer, and the state was therefore unaware of Sanchez's whereabouts or current address. The Court was therefore unable to provide Sanchez with its April 27, 2005 order.*fn1

  II. DISCUSSION

  A. Statute of Limitations

  Under § 2244(d)(1), a state court prisoner usually has one year from the date his conviction becomes final within which to file a § 2254 petition in federal court. 28 U.S.C. § 2244(d)(1). Judgment becomes final by the conclusion of direct review. 28 U.S.C. § 2244(d)(1)(A) (West Supp. 2003). Sanchez entered his guilty plea on November 24, 1998, and judgment was entered on January 15, 1999. Under the California Rules of Court, "unless otherwise provided by law, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." Cal. Ct. R. 30.1(a); see Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (relying on Cal. Ct. R. to establish date of finality). Since Sanchez did not even attempt to file an appeal within 60 days, his judgment became final on March 16, 1999. Sanchez failed to file the ...


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