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D. Dustin v. Raul Lopez

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


May 13, 2011

D. DUSTIN, PETITIONER,
v.
RAUL LOPEZ, WARDEN,
RESPONDENT.

ORDER AND FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court ...." Rule 4 of the Rules Governing Section 2254 Cases. The court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491.

Further, the Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

BACKGROUND

Petitioner, who is currently incarcerated at Corcoran State Prison ("CSP"), was sentenced in June 1995 to a term of 39 years, 4 months, and assessed a restitution fine. See Pet. at 11. Although the precise nature of the petition is unclear*fn1 , it appears that petitioner is contesting the imposition of the restitution fine, as well as his conviction for, inter alia, alleged violations of the Fifth, Sixth and Fourteenth Amendments. Petitioner also requests a photocopy of the entire state court record because he asserts that his copy was improperly disposed of by CSP staff on January 8, 2003. See Doc. No. 1 at 46. Lastly, petitioner seeks appointment of counsel.

Following his conviction and sentence in June 1995, petitioner sought direct review in the state appellate court. See Doc. No. 1 at 18. That petition was denied in 1996.*fn2

Petitioner then sought review before the state supreme court.*fn3 On an unidentified date, that court denied his appeal as untimely. See Doc. No. 1 at 18.

Petitioner filed a petition for writ of habeas corpus in an unidentified state court either in 1996 or 1997. See Doc. No. 1 at 18. His petition was subsequently denied by the state appellate court. Id. It is unclear whether petitioner appealed to the state supreme court.

Petitioner then appears to have filed a second petition for writ of habeas corpus in the Tehama County Superior Court, which summarily denied the petition on July 12, 2010 as incoherent and ineligible, and as untimely with citation to In re Clark, 5 Cal.4th 750 (Cal. 1993). See Doc. No. 1 at 20. There is no indication that petitioner appealed to either the California Court of Appeal or to the California Supreme Court.

DISCUSSION

Upon careful consideration, the undersigned finds that it plainly appears from the face of the petition that petitioner's claims are barred by the statute of limitations

A. Timeliness of the Petition

Because the instant petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

Under the AEDPA statute of limitations, a petition for writ of habeas corpus generally must be filed within one year from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Ninth Circuit Court of Appeals has held that the "time for seeking direct review" under 28 U.S.C. § 2244(d)(1)(A) includes the ninety-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court under Supreme Court Rule 13, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

In the present case, petitioner's conviction and sentence became "final" within the meaning of AEDPA either in 1996 or 1997. Even without knowing the precise date, it is clear that the instant petition is untimely, having been filed in 2010, at least thirteen years later. While the statute of limitations may be tolled to account for a petitioner's applications for post-conviction relief or collateral review in the state courts, see 28 U.S.C. § 2244(d)(2), and can be equitably tolled under "extraordinary circumstances," see Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003), no such grounds for tolling exist here. Therefore, the petition should be dismissed as untimely.

Insofar as petitioner contends that his legal documents were improperly disposed of by CSP correctional officers and, as relief, seeks a photocopy of those documents, those claims are properly brought pursuant to 42 U.S.C. § 1983. Those claims, however, are also barred by the statute of limitations.

The statute of limitations for claims brought under 42 U.S.C. § 1983 is governed by the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 277 (1985). The statute of limitations in the instant case is one year. Cal. Code of Civ. Pro. § 340(3). The Ninth Circuit has also held that the appropriate statute of limitations for § 1983 claims in California is one year. McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991).

Where a federal court borrows a state's statute of limitations, federal law determines when the period begins to run. Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873 (9th Cir.), cert. denied, 469 U.S. 932 (1984). Under federal law, the limitation period begins to run when the plaintiff knows or has reason to know of the injury that is the basis for the action. Trotter v. International Longshoreman's and Warehousemen's Union, Local 13, 704 F.2d 1141, 1143 (9th Cir. 1983).

Here, petitioner was aware of the loss of his legal property as early as September 5, 2003, as evidenced by the informal response to his inmate appeal addressing this matter. See Doc. No. 1 at 46. This action commenced on August 9, 2010. Thus, petitioner was aware of the facts underlying his claim at least more than one year prior to filing suit (indeed, petitioner was aware of it for nearly seven years prior to filing). As such, petitioner's claims are time-barred.

B. Appointment of Counsel

Petitioner has also requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, "[t]he district court must issue or a deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

Where, as here, the petition is dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether this action is barred by the statute of limitations. Accordingly, the court should not issue a certificate of appealability.

Therefore, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis;

2. Petitioner's motion for copies of transcripts is denied;

3. Petitioner's request for appointment of counsel is denied;

4. The Clerk of the Court assign a district judge to this matter; and

IT IS HEREBY RECOMMENDED that:

1. The petition for writ of habeas corpus be dismissed; and

2. The court decline to issue a certificate of appealability.

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 fourteen 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 response to the objections shall be filed and served within fourteen 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).

/014;dust2107.114.jfm


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