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Allen Solis v. Mike Mcdonald

August 1, 2011

ALLEN SOLIS, PETITIONER,
v.
MIKE MCDONALD, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's second amended petition and third motion for a stay and abeyance.

BACKGROUND

On March 18, 2010, petitioner commenced this action by filing a petition for writ of habeas corpus, challenging a judgment of conviction originally entered against him in 2006 by the Sacramento County Superior Court. On March 31, 2010, the court dismissed petitioner's original petition with leave to file an amended petition because the allegations of the original petition failed to clearly identify the grounds upon which petitioner sought federal habeas corpus relief.

In response to the court's order, petitioner filed an amended petition. However, in his form petition, petitioner conceded that he did not raise any of his federal habeas corpus claims on appeal in state court. He also indicated that he had not filed a petition for review with the California Supreme Court. On June 1, 2010, the court dismissed petitioner's amended petition and granted him leave to file a second amended petition. The court instructed petitioner to clearly allege in any second amended petition whether he had exhausted his state court remedies with respect to his habeas claims prior to instituting this action.

In accordance with the court's order, petitioner filed a second amended petition. On July 30, 2010, the court determined that the petition was a "mixed" petition in that it contained both an exhausted and an unexhausted claim. The court instructed petitioner that he could proceed on his exhausted claim or elect to file a motion for a stay and abeyance in this court and return to state court to exhaust his unexhausted claim. In response to the court's order, petitioner filed a motion for stay and abeyance. On September 9, 2010, the court denied petitioner's motion without prejudice because it was not clear from the motion whether this court should exercise its discretion to stay this action. In due course, petitioner filed a renewed motion for a stay and abeyance. Again, the court denied petitioner's motion for a stay without prejudice to refiling because it was not clear whether petitioner was entitled to such relief. Now pending before the court is petitioner's third motion for a stay and abeyance.

SCREENING

Upon review of petitioner's second amended petition and third motion for a stay and abeyance, the court has determined that this action should be dismissed in its entirety as untimely. 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, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

Moreover, the Ninth Circuit has held that a district court may dismiss sua sponte a habeas petition on the grounds that it is untimely under the statute of limitations so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). These findings and recommendations are intended to notify petitioner of the court's intention to dismiss this action on the ground that the pending petition is untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). If petitioner desires to respond and demonstrate to the court that he has filed this action within the applicable statute of limitations or is eligible for statutory or equitable tolling of the limitations period, he may do so by filing objections to these findings and recommendations.

ANALYSIS

I. The AEDPA Statute of Limitations

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA amended 28 U.S.C. § 2244 by adding the following provision: (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 ...


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