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Perez v. Cate

December 23, 2009

ABEL ACEVEDO PEREZ, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 22, 2009. Doc. No. 1. On May 5, 2009, Respondent moved to dismiss the petition as barred by the statute of limitations set forth in the AEDPA at 28 U.S.C. § 2244(d). Doc. No. 8. On June 5, 2009, Petitioner filed an opposition to the motion to dismiss. Doc. No. 9. On August 13, 2009, Magistrate Judge Major filed a report and recommendation recommending that the Court grant Respondent's motion to dismiss. Doc. No. 10. On August 31, 2009, Petitioner filed an objection to the Magistrate Judge's report and recommendation. Doc. No. 12. On September 1, 2009, Respondent filed an objection to the Magistrate Judge's report and recommendation. Doc. No. 11. The Court adopts the report and recommendation of the Magistrate Judge and grants Respondent's motion to dismiss. Moreover, the Court notes that Petitioner's substantive claims fail on the merits.

I. Background

On June 9, 2004, a San Diego jury convicted Petitioner of (1) one count of forcible rape in violation of California Penal Code ("Penal Code") § 261(a)(2), finding that the offense was committed during the course of a burglary; (2) one count of residential burglary in violation of Penal Code § 459; (3) four counts of lewd acts upon a child in violation of Penal Code § 288(a); and (4) two counts of forcible lewd acts upon a child in violation of Penal Code § 288(b)(1). Lodg. No. 13 at 1. With the exception of the burglary charge, the jury found that the crimes were committed against more than one victim. Id. at 1-2. Additionally, as to one of the victims, the jury also found Petitioner had substantial sexual contact with a child under 14 years of age (Penal Code § 1203.066(a)(8)) and that he used force, violence, duress, menace, and fear of bodily injury (Penal Code § 1203.066(a)(1)) in the commission of the offense(s). Id. The trial court sentenced Petitioner to an aggregate prison term of 100 years to life. Id. at 2.

On June 22, 2005, Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. Lodg. No. 1. On March 6, 2006, the California Court of Appeal affirmed Petitioner's convictions in an unpublished opinion. Lodg. No. 2.

On May 23, 2006, Petitioner's counsel filed a petition for writ of habeas corpus in the California Supreme Court. Lodg. No. 3. On December 20, 2006, the California Supreme Court denied the petition in its entirety. See Lodg. No. 4 (citing In re Waltreus, 62 Cal.2d 218 (Cal. 1965)).

A year later, on December 19, 2007, Petitioner constructively filed a petition for writ of habeas corpus in the California Superior Court. Lodg. No. 5. On March 6, 2008, Petitioner submitted an additional ("supplemental") habeas petition to the same court. Lodg. No. 6. The California Superior Court denied both petitions on March 26, 2008. Lodg. No. 7. Petitioner then sought collateral review in the California Court of Appeal on April 29, 2008. Lodg. No. 8. The California Court of Appeal denied the petition on June 30, 2008. Lodg. No. 9.

On July 27, 2008, Petitioner filed a second petition for writ of habeas corpus with the California Supreme Court. Lodg. No. 10. On February 11, 2009, the petition was denied. Lodg. No. 11.

While his second habeas petition with the California Supreme Court was still pending, Petitioner filed another petition for writ of habeas corpus with the superior court on December 2, 2008. Lodg. No. 12. In its February 4, 2009 order denying the petition, the superior court explained its judgment: "This Petition appears on its face to argue some different issues, but basically only changes the approach in a repeat of arguments that either have already been made or should have been raised either on appeal or in prior petitions." Lodg. No. 13 at 3.

On February 22, 2009, Petitioner filed his federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Petitioner claims (1) the trial court erred in denying his motion to sever the counts concerning the two victims; (2) the trial court failed to conduct a sufficient inquiry into his post-trial allegations of ineffective assistance of counsel; (3) the trial court unconstitutionally denied Petitioner access to his victims' medical records; and (4) actual innocence of crimes perpetrated against one victim and ineffective assistance of counsel. Id.

II. Discussion

A. Scope Of Review

The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to any portion of the report, the district court "shall make a de novo determination of those portions of the report... to which objection is made." Id. The Court reviews de novo the magistrate judge's conclusions of law. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983) overruled on other grounds by United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).

B. Plaintiff's Complaint Is Barred By The Statute of Limitations

On May 5, 2009, Respondent moved to dismiss Petitioner's federal habeas corpus petition as barred by the statute of limitations set forth in 28 U.S.C. § 2244(d). Doc. No. 8 at 2-6. In support, Respondent contends that the applicable limitations period expired over four hundred days prior to Petitioner's proper filing of his federal habeas petition. Id. at 6. Respondent also contends that Petitioner is not entitled to the benefit of equitable tolling. Id. at 11-13.

Petitioner opposed Respondent's motion on June 5, 2009. Doc. No. 9. Petitioner asserts that he is entitled to equitable tolling for two reasons: (1) prison officials failed to timely deliver trial transcripts that he needed for his federal petition, and (2) his former appellate counsel miscalculated the federal limitations period. Id.

1. Petitioner Constructively Filed His Petition On February 22, 2009

On February 22, 2009, Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Respondent asserts that March 3, 2009, the date on which Petitioner complied with the Court's filing fee requirement, should be used as the date upon which Petitioner properly filed his petition. See Doc. No. 8 at 12; and Doc. No. 11 at 3. However, Petitioner's federal habeas petition bears a handwritten signature, typed verification, and date of February 22, 2009. Doc. No. 1. at 30-31. In determining the filing date of his state and federal petitions, Petitioner is entitled to the benefit of the "mailbox rule," which is the date the petitions were presented to prison authorities for mailing to the court. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that petitioner's notice of appeal is deemed "filed at the time [he] deliver[s] it to the prison authorities for forwarding to the court clerk."); Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (recognizing the application of Houston's mailbox rule to federal habeas filings); see also Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (recognizing same with regard to state habeas petitions). In keeping with the Court's duty to construe pro se filings liberally, this Court will construe the instant habeas petition as filed on February 22, 2009. See Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005).

2. The Statute Of Limitations Under The AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996, imposes a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d). Section 2244(d)'s one-year limitations period applies to all habeas petitions filed by persons in "custody pursuant to the judgment of a State court." Id. § 2244(d)(1). The one year limitations period runs 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 ...


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