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RIVAS v. RYAN

United States District Court, S.D. California


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 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 time-barred.

  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 application."
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 second application).

  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 statutory tolling.

  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.

20050929

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