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RIVAS v. RYAN

September 29, 2005.

ROY C. RIVAS, JR., Petitioner,
v.
STUART J. RYAN, Warden, Respondent.



The opinion of the court was delivered by: NAPOLEON JONES, District Judge

ORDER:
(1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; and
(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 Habeas Corpus.

Background

  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.)

  Discussion

  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 (1980).

  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 is time-barred.

  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 ...


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