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O'Reilly v. R&R

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 2, 2007

SYLVESTER O'REILLY, PETITIONER,
v.
(1) ADOPTING R&R; AND (2) DENYING PETITION FOR WRIT VINCENT IARIA, ET AL., OF HABEAS CORPUS RESPONDENTS.

The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER

Before the Court is Respondent Vincent Iaria's ("Respondent") Motion to Dismiss Petitioner Sylvester O'Reilly's ("Petitioner") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. [Doc. Nos. 1, 9, 10.] Magistrate Judge Louisa S. Porter has filed a Report and Recommendation ("R&R") recommending that this Court grant Respondent's Motion to Dismiss. [Doc. No. 17.] To date, Petitioner has filed no objections. The Court has determined that the issues presented below are appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons set forth below, this Court ADOPTS the R&R and DENIES the Petition in its entirety.

Background

On April 30, 2001, in San Diego County Superior Court, a jury convicted Petitioner of misdemeanor battery on a police officer, a violation of California Penal Code §§ 242 and 243(b), and resisting arrest, a violation of California Penal Code § 148(a). (See Resp't's Lodg't No. 1.) Petitioner was placed on summary probation for three years under the conditions that he serve forty-five days in the custody of the Sheriff, perform fifteen days in a public service program, and complete a twelve hour anger management course. (See id.)

On May 14, 2001, Petitioner filed a timely Notice of Appeal, directly appealing the verdict to the Appellate Division of the California Superior Court. (See Resp't's Lodg't No. 2.) On July 11, 2002, Petitioner's former counsel filed an abandonment of appeal, and an order of dismissal was issued on July 12, 2002. (See Resp't's Lodg't No. 7 at 1, 2.)

On May 28, 2003, Petitioner's current counsel filed a petition for writ of habeas corpus in the San Diego County Superior Court. (See Resp't's Lodg't No. 6.) Petitioner argued that his former appellate attorney had rendered ineffective assistance of counsel by abandoning Petitioner's appeal. (See Resp't's Lodg't No. 6 at 3.) On June 5, 2003, the court denied the petition, finding a failure to establish a claim of ineffective assistance of counsel, as well as procedural deficiencies. (See Resp't's Lodg't No. 7.) However, relief was granted on Petitioner's motion to recall the remittitur and the appeal was reinstated on July 2, 2003. (See Resp't's Lodg't No. 10 at 2.)

On October 8, 2003, Petitioner filed Appellant's Opening Brief in the direct appeal, and Respondent filed his brief on November 12, 2003. (See Resp't's Lodg't Nos. 3, 4.) On December 12, 2003, the Appellate Division of the Superior Court unanimously affirmed the lower court's judgment without comment. (See Resp't's Lodg't No. 5.) Petitioner sought no further direct review.

On November 30, 2004, Petitioner's counsel filed a second habeas petition in the San Diego County Superior Court. (See Resp't's Lodg't No. 8.) Petitioner's first ground contended that his conviction and sentence were unlawful and in violation of the Fourth, Sixth, and Fourteenth Amendments of the U.S. and California Constitutions, because his trial counsel rendered ineffective assistance in failing to (1) move for a judgment of acquittal at the close of the prosecution's case-in-chief and at the close of the presentation of evidence, and (2) move to suppress the observations of the arresting officers during Petitioner's allegedly illegal arrest. (See Resp't's Lodg't No. 8 at 3.) Petitioner's second ground alleged a due process violation in that there was insufficient evidence to sustain a conviction given that the arresting officers were not engaged in lawful performance of their duties. (See id. at 4.) On January 21, 2005, the Superior Court denied the petition on both substantive and procedural grounds. (See Resp't's Lodg't No. 9 at 2-3.)

On March 11, 2005, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District, relying upon three grounds that were substantively equivalent to the two claims in the previous habeas petition. (See Resp't's Lodg't No. 10 at 4-5.) On April 25, 2005, the court denied the petition because Petitioner failed to provide an adequate record for review. (See Resp't's Lodg't No. 12 at 1.) The court further noted that the issues raised in the petition had already been raised and rejected on appeal, and therefore Petitioner could not revisit those claims in a habeas petition. (See id. at 1-2)

On August 30, 2005, Petitioner filed a writ of habeas corpus in the California Supreme Court. (See Resp't's Lodg't No. 13.) Petitioner alleged two grounds that were substantively equivalent to the three grounds alleged in the habeas writ filed in the California Court of Appeal. (See id. at 5-6.) On October 12, 2005, the California Supreme Court summarily denied the petition, exhausting Petitioner's state court remedies. (See Resp't's Lodg't No. 15.)

On January 27, 2006, Petitioner filed the instant Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of California, asserting three grounds. [Doc. No. 1.] First, Petitioner alleges violations of the Sixth and Fourteenth Amendments of the U.S. and California Constitutions because he was denied the effective assistance of counsel when counsel failed to move for a judgment of acquittal at the close of the prosecution's case-in-chief and at the close of all the evidence. (See Pet. at 6.) Second, Petitioner alleges violations of the Fourth, Sixth, and Fourteenth Amendments of the U.S. and California Constitutions because he was denied the effective assistance of counsel when counsel failed to move to suppress the observations of the arresting officers pursuant to Petitioner's allegedly illegal arrest in his home. (See id. at 7.) Finally, Petitioner alleges a due process violation under the Fifth and Fourteenth Amendments to the U.S. Constitution in that the arresting officers were not engaged in the lawful performance of their duties, and therefore there was insufficient evidence to sustain a conviction. (See id. at 8.)

On October 5, 2006, Magistrate Judge Porter issued an R&R advising this Court to grant Respondent's Motion to Dismiss, and dismiss this action with prejudice. [Doc. No. 17.] To date, no objections to the R&R have been filed.

Legal Standard

The duty of the district court in connection with a magistrate judge's report and recommendation in habeas cases is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). When an objection is made, the court must make a de novo determination as to those parts subject to objection. See United States v. Raddatz, 447 U.S. 667, 676 (1980).

When no objections are filed, the court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Court of Appeals for the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citation omitted), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). In this case, Petitioner filed no objections. Accordingly, this Court will assume the correctness of the findings of fact and conduct a de novo review of the conclusions of law.

Discussion

In the R&R, the Magistrate Judge recommends Respondent's Motion to Dismiss be granted because Petitioner's claim is time-barred under the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (See R&R at 7.) For the reasons set forth below, this Court ADOPTS the R&R, and GRANTS Respondent's Motion to Dismiss.

Petitioner's Habeas Petition is Time-Barred

The Magistrate Judge correctly concludes that the Petition must be dismissed because Petitioner filed the Petition after the statute of limitations had expired. (See R&R at 3.) Under the AEDPA, a prisoner has one year from the date the conviction becomes "final by the conclusion of direct review or the expiration of the time for seeking such review" to file an application for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1)(A) (2006).

On December 12, 2003, the Appellate Division of the California Superior Court affirmed the Petitioner's conviction. (Resp't's Lodg't No. 5.) Petitioner did not seek further review. On December 27, 2003, fifteen days after its pronouncement, the Appellate Division's decision became final. See Cal. Rules of Court 8.708(a)(1).*fn1 Therefore, on December 28, 2003, the AEDPA's one year statute of limitations began to run. See Fed. R. Civ. P. 6(a).

A. Petitioner's Petition Exceeds the Extension Granted by Statutory Tolling

Under the AEDPA, the one-year period of limitation is tolled during the time which "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (2006). The statute of limitations may be tolled "from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge," so long as the subsequent filings occurred within a reasonable time. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), see also Evans v. Chavis, 546 U.S. 189, 126 S.Ct. 846, 854 (2006) (holding a habeas petition in California to be untimely because petitioner could not fully explain why he delayed three years after the denial of his petition at the California Court of Appeals before filing with the California Supreme Court). The United States Supreme Court has held that the one year time limitation is statutorily tolled when a state habeas petition is "pending," during the interval between a lower state court's denial of the petition and the petitioner's filing of an appeal to the next level court. Carey v. Saffold, 536 U.S. 214, 219-21 (2002). While statutory tolling may extend the statute of limitations, this Court FINDS that any tolling has not carried this Petition into an acceptable time period.

Statutory tolling does not apply to Petitioner's first petition for writ of habeas corpus, because the state court judgment had not become final. As stated earlier, Petitioner's conviction became final on December 27, 2003, and the statute began to run on December 28, 2003. On November 30, 2004, after 338 days had run from the one-year statute of limitations, Petitioner filed his second petition for writ of habeas corpus in the California Superior Court. Because his petition was thereafter "pending" in court, the statute was tolled from this date until October 12, 2005, when the California Supreme Court rejected his petition, exhausting Petitioner of any further state court recourse.*fn2

Petitioner filed the instant petition on January 27, 2006. [Doc. No. 1.] From October 13, 2005, until January 27, 2006, an additional 107 days ran from the statute of limitations. Adding this to the 338 days that had already run places the non-tolled time period at a total of 445 days, clearly past the 365 days allowed under the AEDPA. Thus, statutory tolling does not bring this Petition within the acceptable period.

B. Equitable Tolling Does Not Apply

Alternatively, in rare instances, a petitioner may receive equitable tolling of the statute of limitations. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Equitable tolling is appropriate when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 539-40 (9th Cir. 1998). The burden of proof to show equitable tolling falls on the petitioner. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

Here, Petitioner has not offered any justification to explain why he could not file by the expiration of the AEDPA's one-year statute of limitations. Petitioner has not met his burden of providing sufficient grounds for equitable tolling. Therefore, the Court FINDS that equitable tolling does not apply in this case.

Conclusion

Accordingly, because Petitioner filed outside the AEDPA's statute of limitations, and neither of the tolling provisions can bring the Petition within the applicable time period, this Court GRANTS Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus as untimely, and dismiss this action with prejudice.

IT IS SO ORDERED.


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