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Vu v. Kirkland

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 15, 2008

HUNG VIET VU, PETITIONER,
v.
RICHARD KIRKLAND, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for murder. He is serving a sentence of life without the possibility of parole. This action is proceeding on the amended petition filed April 11, 2008, as to the following claims: 1) the jury instructions failed to define imperfect self-defense; 2) due process forbids firearm enhancement in addition to special circumstance; 3) gang enhancements are not supported by substantial evidence; 4) the drive-by shooting special circumstance is overbroad.

Pending before the court is respondent's July 2, 2008, motion to dismiss on grounds that this action is barred by the statute of limitations. On September 4, 2008, a hearing was held regarding this motion. After carefully considering the record, the court recommends that the motion be denied.

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

On March 15, 2006, the California Supreme Court denied petitioner's petition for review. Respondent's lodged document no. 2. Petitioner's conviction was final when the time for filing a petition for writ of certiorari expired ninety days later on June 14, 2006. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Petitioner had one year from that date, i.e. until June 15, 2007, to file a timely federal petition.

Petitioner filed his original federal petition on March 14, 2007. Respondent argues that the court should not consider the original petition because it does not constitute a proper petition because it contains no grounds for relief or facts in support of these grounds. Respondent goes on to argue that the amended petition filed April 11, 2008, is untimely because it cannot relate back to the original petition pursuant to Fed. R. Civ. P. 15(c) because the original petition contains no grounds for relief.

The original petition indicated that on direct appeal in state court, petitioner raised the four claims now raised in the amended petition and one additional claim. Original Petition, p.2, no. 9(f). The original petition also stated that petitioner had filed no other petitions, applications or motions concerning the at-issue conviction in any state court. Id., p. 3, no. 10. In the section of the petition form asking petitioner to set forth ground one, petitioner wrote, "See attachments setting forth all factual and legal grounds on which relief is sought. State remedies were exhausted on all grounds on which relief is sought." Id., court file p. 5, no. 12. The petition contained no further discussion of any other claims. No exhibits are attached to the amended petition.

Although not a model of clarity, it is clear that the original petition intended to raise all claims raised on direct appeal in state court, which were identified in the original petition. It also appears that petitioner meant to attach his state appellate briefing to the original petition which described the claims in more detail but inadvertently failed to do so.

"Pro se petitioners may not be held to the same technical standards as litigants represented by counsel." Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002), citing Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015 (19410(pro se petition for habeas corpus "ought not to be scrutinized with technical nicety"); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990)("This court recognizes that it is has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.").

Because the timely filed original petition adequately identified the claims on which petitioner intended to proceed, now raised in the amended petition, albeit indirectly, this action is not barred by the statute of limitations. Accordingly, respondent's motion to dismiss should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's July 2, 2008, motion to dismiss (# 26) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20080915

© 1992-2008 VersusLaw Inc.



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