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MENDOZA v. WOODFORD

United States District Court, S.D. California


September 15, 2005.

RONNY MENDOZA, Petitioner,
v.
JEANNE WOODFORD, Director of the California Department of Corrections, Respondent.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

ORDER:

(1) ADOPTING AS MODIFIED THE FINDINGS OF UNITED STATES MAGISTRATE JUDGE;
(2) DENYING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; AND,
(3) DIRECTING RESPONDENT TO ANSWER PETITION AND SETTING BRIEFING SCHEDULE
Petitioner Ronny Mendoza is a state prisoner proceeding pro se and in forma pauperis with a First Amended Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 4.) Respondent Jeanne Woodford has filed a Motion to Dismiss the First Amended Petition on the grounds it was filed after the expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).

Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Ruben B. Brooks which recommends that the Motion to Dismiss be denied and that Respondent be directed to file an Answer to the First Amended Petition. (Doc. No. 13.) The R&R finds that the original Petition was filed within the one-year statute of limitations, and, although the First Amended Petition was filed after the expiration of the statute of limitations, it is nevertheless timely because it relates back to the original Petition and, alternately, because equitable tolling is appropriate. No party has filed objections to the R&R.

  The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2005). For the following reasons, the Court ADOPTS as modified the finding by the Magistrate Judge that the First Amended Petition was filed within the one-year statute of limitations, and DIRECTS Respondent to file an Answer to the First Amended Petition.

  I. The original Petition was filed within the one-year statute of limitations.

  The Court adopts the finding in the R&R that the triggering date for the one-year statute of limitations is computed pursuant to 28 U.S.C. § 2244(d)(1)(A), which provides that the statute of limitations began to run on the date on which the criminal judgment became final after the conclusion of direct review or the expiration for seeking such review. (R&R at 9-10.) The state supreme court denied Mendoza's petition for review on June 13, 2001, and the expiration for seeking review of his conviction ended 90 days later on September 11, 2001, which was the last day Petitioner could have timely filed a petition for a writ of certiorari in the United States Supreme Court. The Court adopts the finding that the one-year statute of limitations began to run the next day, on September 12, 2001, and continued to run until it began tolling on the date Petitioner filed his first state petition for collateral review. (R&R at 10.) The Court adopts the finding that Petitioner filed his first state habeas petition on June 5, 2002. (R&R at 6.) Although the R&R found that 272 days ran on the statute of limitations before Petitioner filed his first state habeas petition, the statute of limitations in fact ran 266 days, from September 12, 2001 up to and including June 4, 2002, as it was tolled beginning on June 5, 2002. The Court adopts as modified this finding in the R&R.

  The Court adopts the finding that tolling continued until the state supreme court denied Petitioner's last state habeas petition on June 9, 2004. (R&R at 12.) The statute of limitations began to run again on June 10, 2004, at which time Petitioner had 99 days remaining on the one-year statute of limitations. The last day Petitioner could timely file a federal petition was Thursday, September 16, 2004. The Court adopts the finding in the R&R that the original Petition in this action was constructively filed on September 1, 2004, the day it was handed to prison authorities for mailing to the Court. (R&R at 12.) Thus, on the day this action was commenced, Petitioner had 15 days remaining on the one-year statute of limitations. Accordingly, the Court ADOPTS AS MODIFIED the finding in the R&R that the original Petition was filed before the expiration of the one-year statute of limitations.

  II. The First Amended Petition is also timely.

  On October 29, 2004, the Court granted Petitioner's Motion to proceed in forma pauperis and dismissed the original Petition without prejudice because Petitioner had failed to allege exhaustion of his state court remedies as to any claim. (See 10/29/04 Order at 1-3.) Petitioner was granted leave to file a First Amended Petition wherein he alleged exhaustion of his state court remedies with respect to his claims, and the Court retained jurisdiction over the matter until December 31, 2004. (Id. at 3-4.) The First Amended Petition was filed on December 27, 2004, well after the statute of limitations had expired on September 17, 2004 (see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that the filing of a federal habeas petition does not toll the statute of limitations)), but within the time period in which this Court had retained jurisdiction over the matter, and prior to the filing of any responsive pleading by Respondent. The Magistrate Judge found that the First Amended Petition relates back to the original Petition because the Court had retained jurisdiction over this action and because the two Petitions contain identical claims. (R&R at 14-15.)

  In Felix v. Mayle, 545 U.S. ___, 125 S.Ct. 2562 (2005), the Court held that where an amended petition is filed as a matter of right prior to the filing of a responsive pleading, "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." Id. at 2574. The R&R correctly found that the original Petition and the First Amended Petition contain identical claims, as the "claims" section of the First Amended Petition is a photocopy of the "claims" section of the original Petition, as are the Memorandums of Points and Authorities in Support of both petitions. Thus, the First Amended Petition relates back to the filing of the original Petition, id., and the Court adopts the finding in the R&R that the First Amended Petition was filed within the one-year statute of limitations.

  The R&R went on to find that equitable tolling would be available as an alternate to relation back because, if relation back did not apply, the Court would have affirmatively mislead Petitioner in its original dismissal Order by representing that the dismissal was "without prejudice" when in fact it would have been with prejudice since the statute of limitations had expired at the time the dismissal Order was filed. (R&R at 16.) The Court need not adopt this finding because the dismissal of the original Petition did not advise or inform Petitioner of any options, and did not give Petitioner any choice whatsoever regarding the dismissal. See Brambles v. Duncan, 412 F.3d 1066, 1070 (9th Cir. 2005).

  III. Conclusion and Order.

  Based on the foregoing, the Court ADOPTS AS MODIFIED the findings of the United States Magistrate Judge as set forth in this Order, DENIES Respondent's Motion to Dismiss, and DIRECTS Respondent to file a Answer to the First Amended Petition within forty-five(45) days of the date this Order is stamped "Filed." Petitioner may file a Traverse within thirty(30) days after being served with the Answer.

  IT IS SO ORDERED.

20050915

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