United States District Court, S.D. California
September 29, 2005.
ROY C. RIVAS, JR., Petitioner,
STUART J. RYAN, Warden, Respondent.
The opinion of the court was delivered by: NAPOLEON JONES, District Judge
(1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION;
(2) DENYING RESPONDENT'S MOTION TO DISMISS THE PETITION FOR WRIT
OF HABEAS CORPUS.
Before the Court is Magistrate Judge Adler's Report &
Recommendation ("R&R") that this Court deny Respondent's Motion
to Dismiss Petitioner's Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. Respondent, Stuart J. Ryan, timely
filed his Objections and Petitioner, Roy C. Rivas, filed a Reply
brief. (Doc. Nos. 30, 32.) The issues presented are decided
without oral argument. See Civ. L.R. 7.1.d.1. For the reasons
set forth below, this Court ADOPTS the R&R in its entirety and
DENIES Respondent's Motion to Dismiss the Petition for Writ of
Roy Rivas is a state prisoner serving a sentence of 33 years to
life following his conviction on August 1, 1994, for first-degree
murder, attempted residential robbery, residential burglary, and a finding that Rivas personally used a pistol.
(Respondent's P. & A. in Support of Motion to Dismiss at 1.) On
October 20, 1995, Petitioner filed an appeal in the California
Court of Appeal, Fourth Appellate District, Division One. (Cal.
Ct. of Appeal Decision on Rivas' Direct Appeal [Lodgment No. 3]
at 2.) On December 14, 1995, Petitioner filed a Petition for Writ
of Habeas Corpus in the same court. Petitioner asserted that he
was denied his constitutional right to a fair and impartial jury
as a result of juror misconduct in the form of the failure of the
jury foreman, Rudy Medina, to disclose on voir dire an intimate
relationship ending acrimoniously between Medina and Petitioner's
mother 22 years before the trial. (Cal. Ct. of Appeal Decision on
Rivas' Petition for Writ of Habeas Corpus [Lodgment No. 3] at 2.)
On April 26, 1996, the California Court of Appeal stayed the
appeal pending determination of the Petition for Writ of Habeas
Corpus. (Lodgment No. 2.) On December 17, 1996, the California
Court of Appeal denied Petitioner's Petition for Writ of Habeas
Corpus. (Lodgment No. 3.)
On May 26, 1998, Petitioner filed a Petition for Writ of Habeas
Corpus in the California Supreme Court. Petitioner made several
claims, including that he was denied his constitutional right to
a fair trial and an impartial jury due to jury foreman Medina's
failure to disclose his relationship with Petitioner's mother.
(Lodgment No. 4.)
On October 23, 1998, Petitioner filed in the California Supreme
Court a motion to withdraw his claims in order to amend the
petition. (Lodgment No. 4.) On November 24, 1998, the California
Supreme Court issued an order granting Petitioner's request to
withdraw the petition. Id.
On July 10, 2003, Petitioner filed a second Petition for Writ
of Habeas Corpus in the California Supreme Court. Petitioner made
several claims, including that he was denied his right to an
impartial jury and that the Superior Court's determination that
there was no jury misconduct was an unreasonable determination in
light of the evidence presented in the state court proceedings.
(Lodgment No. 5 at 8, 17, 22, 29, 35 and 37). On May 19, 2004,
the California Supreme Court denied the Petition without comment
or citation. (Lodgment No. 5.)
On June 9, 2004, Petitioner filed a Petition for Writ of Habeas
Corpus in this Court making several claims, including those
mentioned above. (Lodgment No. 6.) On November 1, 2004, Respondent filed a Motion to Dismiss arguing that the
Petition must be dismissed with prejudice because it is barred by
the statute of limitations. (Respondent's Motion to Dismiss at
8.) On November 15, 2004, Petitioner filed an Opposition to
Respondent's Motion to Dismiss. (Doc. No. 16.) Finally, on August
12, 2005, Magistrate Judge Adler issued an R&R finding that
Respondent's Motion to Dismiss should be denied. (R&R at 10.)
I. Legal Standard
The duty of a district court in connection with a magistrate
judge's report and recommendation in habeas cases such as this is
set forth in Rule 72(b) of the Federal Rules of Civil Procedure
and 28 U.S.C. § 636(b)(1). When objections are made the Court
must make a de novo determination of any part to which there is
an objection. United States v. Raddatz, 447 U.S. 667, 676
II. The Petition is Not Time-Barred
Respondent argues that due to Petitioner's October 23, 1998
withdrawal of his claims: (1) there was no petition "pending"
during the four-and-a-half year interval between Petitioner's
California Supreme Court petitions; (2) the length of the
interval constituted an excessive delay; and (3) Petitioner
effectively "abandoned" his claims. Therefore, Respondent
contends that Petitioner was not entitled to statutory tolling
during that time and that his Petition is now time-barred.
(Respondent's Objections to R&R at 1-4.) Magistrate Judge Adler's
R&R states that Petitioner's state habeas claims were all
"properly filed" and "pending" under section 2224 and therefore
are not time-barred. (R&R at 5-10.) For the reasons stated below,
this Court ADOPTS the R&R in its entirety and DENIES
Respondent's Motion to Dismiss on the grounds that the Petition
A. Rivas' Habeas Petitions Were "Pending"
Under 28 U.S.C. § 2244(d)(1), a state court usually has one
year from the date his conviction becomes final within which to
file a section 2254 habeas petition in federal court. However,
"the time during which a properly filed application for [s]tate
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).
In Chavis v. Lemarque, 382 F.3d 921, 925 (9th Cir. 2004)
(cert. granted, 125 S.Ct. 1969 (2005), the state argued that
the three-year delay between Chavis' first round California Court
of Appeal and Supreme Court petitions was unreasonable and
therefore could not be tolled. The court held that when a habeas
petition to the California Supreme Court is denied on the merits,
it is pending during the interval between the Court of Appeal
decision and the Supreme Court petition and is entitled to
tolling. Id. at 926.
The Chavis court also added that "when the California Supreme
Court denies a habeas petition without comment or citation, we
have long treated the denial as a decision on the merits." Id.
(citing Hunter v. Aspuro, 982 F.2d 344, 348 (9th Cir. 1992)).
The court concluded that because the California Supreme Court's
summary denial of the petition was on the merits and not
dismissed as untimely, the petitioner was entitled to tolling.
Id.; see also Gaston v. Palmer, 417 F.3d 1030, 1042 (9th Cir.
2005) ("[O]ur determination of whether a California applicant
sought habeas relief in a timely fashion is governed by whether
California courts have dismissed his applications as untimely.").
In the current case, none of Petitioner's state court habeas
petitions were denied as untimely. In particular, Petitioner's
third and final state court habeas petition filed on July 10,
2003, in the California Supreme Court, was denied without comment
or citation. As Chavis indicated, this form of denial is
considered a denial on the merits. See Chavis, 382 F.3d at 926;
see also Gaston, 417 F.3d at 1038 ("We construe `postcard'
denials such as these to be decisions on the merits."). Thus,
regardless of whether Petitioner withdrew his claims or the
length of the interval, Chavis and Gaston demonstrate that
Petitioner's claims were timely made and that he is entitled to
statutory tolling. Therefore, this Court DENIES Respondent's
Motion to Dismiss on the grounds that the Petition is
B. Petitioner Did Not Abandon His Claims
In Gaston, 417 F.3d at 1043, the Ninth Circuit stated:
"First the length of time available for interval
tolling between California state habeas applications
is determined by state law. Second, a California
habeas applicant is not entitled to interval tolling if he abandons all of
his claims in his first application and his second
The Ninth Circuit examined the claims asserted in Gaston's
various habeas petitions and determined that although Gaston
filed his habeas petitions in an atypical order, Gaston continued
to seek relief in his later petitions on grounds raised in his
earlier petitions and therefore did not abandon his claims. Id.
at 1044; see also Welch v. Carey, 350 F.3d 1079
, 1083 (9th Cir.
2003) (finding that petitioner had "abandoned" his first set of
claims where he asserted completely different claims in his
Throughout all of Petitioner's state habeas petitions,
Petitioner continued to assert his claim that he was denied an
impartial jury due to jury foreman Medina's misconduct in failing
to disclose his prior relationship with Rivas' mother. (Lodgment
No. 3, 4, 5, 6.) Therefore, Petitioner did not "abandon" his
claims and this Court FINDS that Petitioner is eligible for
III. Conclusion and Order
For the foregoing reasons, the Court (1) ADOPTS the R&R in
its entirety and (2) DENIES Respondent's Motion to Dismiss on
the grounds that Petitioner's Petition is time-barred.
IT IS SO ORDERED.
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