United States District Court, S.D. California
August 22, 2005.
VICTOR HUGO SANCHEZ, Petitioner,
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
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
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
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
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
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
IT IS SO ORDERED.
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