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SANCHEZ v. CAREY

United States District Court, S.D. California


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 current petition until September 30, 2004, more than four years and six months after the statute had run. Therefore, Sanchez's petition is barred by the statute of limitations unless he is entitled to statutory or equitable tolling.

  B. Statutory Tolling

  "The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The petitioner has the burden of demonstrating any facts applicable to tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002).

  After Sanchez's judgment became final on March 16, 1999, his next action was to file a request for transcripts of his trial court proceedings with the San Diego Superior Court, on August 12, 1999. (Lodgment No. 2.) The Superior Court denied that request on September 27, 1999. (Lodgment No. 3.) Respondent correctly points out that this action did not toll the statute, since it did not constitute "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). See Johnson v. Lewis, 310 F. Supp. 2d 1121, 1125 (C.D. Cal. 2004) (citations omitted); and Hodge v. Greiner, 269 F.3d 104, 107 (2d. Cir. 2001).

  The next action taken by Sanchez was on July 17, 2000, when the San Diego Superior Court received his "Motion for Leave to File Belated Notice of Appeal." Even if this could be considered a "properly filed application" for post-conviction review, it was filed one year and two months after Sanchez's conviction became final, and therefore does not fall within the statute of limitations under 28 U.S.C. § 2244(d)(1).

  C. Equitable Tolling

  AEDPA's one-year statute of limitations is subject to equitable tolling. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). However, the Ninth Circuit in Beeler noted that "equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996)).

  A district court must give a pro se habeas petitioner great leeway regarding the issue of equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc) (holding that a district court errs in dismissing a habeas petition without first pursuing development of an equitable tolling claim); Laws v. LaMarque, 351 F.3d 919 (9th Cir. 2003) (same). The Court has done all it can do to give Sanchez an opportunity to argue that equitable tolling should be available to him, even going so far as to speak with Sanchez's parole officer in an attempt to ascertain his current address. Despite these efforts, the Court was unable to determine Sanchez's current address.

  Pursuant to Local Rule 83.11(b), "A party proceeding pro se shall keep the court and opposing parties advised as to [his] current address." The Court tried to locate Sanchez in an attempt to provide him with its April 27, 2005 order, but it is ultimately Sanchez's responsibility to keep the Court informed of his current address.

  Sanchez has failed to provide the Court with information regarding any impediment to the filing of his habeas petition. Therefore, he is not entitled to equitable tolling.

  III. FAILURE TO PROSECUTE

  Sanchez's petition is barred by the statute of limitations. However, even if it were not, his petition is subject to dismissal for his failure to prosecute this case and failure to keep the Court apprised of his current address. Under additional terms of Local Rule 83.11(b), "If mail directed to a pro se plaintiff by the clerk at the plaintiff's last designated address is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of the plaintiff's current address, the court may dismiss the action without prejudice for failure to prosecute." The Court's April 27, 2005 order was returned by the Post Office on June 22, 2005. It has been 60 days since then, and Sanchez has failed to notify the Court of his current address. Therefore, his petition is subject to dismissal for failure to prosecute.*fn2

  IV. RECOMMENDATION

  After a thorough review of the record in this matter, the undersigned Magistrate Judge finds that Respondent's motion to dismiss should be GRANTED. This Report and Recommendation is submitted to the Honorable Napoleon A. Jones, Jr., United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  IT IS ORDERED that no later than August 31, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than September 7, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20050822

© 1992-2005 VersusLaw Inc.



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