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Salvador Espejo Zamudio v. L.S. Mcewen

March 18, 2013

SALVADOR ESPEJO ZAMUDIO,
PETITIONER,
v.
L.S. MCEWEN, WARDEN; MATHEW CATE, SECRETARY RESPONDENTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION [Doc. No. 18]; (2) DENYING MOTION TO STAY AS MOOT [Doc. No. 5]; (3) DENYING MOTION FOR EVIDENTIARY HEARING , WITHOUT PREJUDICE [Doc. No. 4]; and (4) DENYING CERTIFICATE OF APPEALABILITY WITHOUT PREJUDICE [Doc. No. 30]

This matter is before the Court on Petitioner's motions to stay and for an evidentiary hearing in connection with his Petition for Writ of Habeas Corpus ("Petition"). [Doc. Nos. 4, 5.] Respondent opposes the motion to stay and argues the Petition is untimely, and should therefore be dismissed. [Doc. No. 11.] Magistrate Judge Mitchell Dembin issued a Report and Recommendation ("R & R") recommending that the Court deny Petitioner's motions to stay and for an evidentiary hearing, and sua sponte dismiss the Petition as untimely. [Doc. No. 18.] Petitioner subsequently filed an Objection to the R & R ("Objection"). [Doc. No. 31.]

Upon de novo review, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Magistrate Judge's R & R. The Court adopts the Magistrate Judge's recommendation as to statutory tolling, but declines to adopt the recommendation to sua sponte dismiss the Petition. The Court also declines to adopt the Magistrate Judge's recommendation for the motion to stay as the California Supreme Court has since ruled on the state habeas petition. The Court DENIES AS MOOT the motion to stay. The Court DENIES WITHOUT PREJUDICE Petitioner's motion for an evidentiary hearing. The Court also DENIES WITHOUT PREJUDICE a certificate of appealability as it is premature.

BACKGROUND

The R & R contains a summary of the proceedings in this case. The Court adopts the Magistrate Judge's background, subject to a few exceptions. [Doc. No. 18, R & R at 1-2.] Petitioner was convicted on September 4, 2008 of rape with a foreign object, forcible oral copulation, two counts of burglary and robbery, and kidnaping.*fn1 [Doc. No. 1-1, Abstract of Judgment at 51.] On direct appeal, the kidnaping charge, and several related enhancements, were overturned by the court of appeal. [Doc. No. 1-1, Court of Appeal Decision at 20-34.] Petitioner's appeal to the California Supreme Court was denied on April 20, 2010.*fn2 On June 11, 2010, Petitioner was sentenced to twenty-five years to life plus five years, four months.

Petitioner argues that although he requested his appellate counsel to file a notice of appeal, counsel failed to do so. [Doc. No. 1, Petition at 23-24.] Petitioner states that he subsequently prepared a notice of appeal with the assistance of other inmates, and presented it to prison officials for mailing on August 2, 2010. He believes that prison officials did not mail the notice of appeal to the court. [Doc. No. 5, Mot. to Stay at 3.]

Petitioner filed a Petition for Writ of Habeas Corpus in federal court on March 21, 2012 [Doc. No. 1] concurrently with a Petition to the California Supreme Court, and motions for a stay and for an evidentiary hearing. [Doc. Nos. 4, 5.] On May 23, 2012, Respondent filed an opposition to Petitioner's motion to stay. [Doc. No. 11, Resp.'s Opp.] Petitioner filed a reply on July 5, 2012. [Doc. No. 17, Pet's Reply.] On September 12, 2012, the California Supreme Court denied the state habeas petition. [Doc. No. 31, Objection at 20.]

LEGAL STANDARD

The duties of the district court in connection with a magistrate judge's R & R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo review determination of those portions of the report . . . to which objection is made," and "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)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

DISCUSSION

I. Motion to Stay

Petitioner seeks a stay of the federal Petition in order to exhaust his state remedies. [Doc. No. 5, Mot. to Stay.] On September 12, 2012, the California Supreme Court denied the state habeas petition. Therefore, the Court DENIES AS MOOT the motion to stay. The only issue before the Court is whether to accept the Magistrate Judge's recommendation to sua sponte dismiss the Petition as untimely.

II. Statute of Limitations

Habeas petitions are governed by a one-year period of limitation, which begins to run on the date on which judgment became final by the conclusion of direct review. 28 U.S.C. § 2244(d)(1). The R & R concludes that Petitioner's conviction became final on August 10, 2010, after the expiration of the 60-day period during which he could have filed a direct appeal following his sentencing on June 11, 2010.*fn3 Therefore, the R & R concludes that Petitioner's one-year statute of limitations began to run on August 10, 2010. Because Petitioner did not file his Petition until March 21, 2012, which was 589 days after August 10, 2010, the R & R concludes that the Petition is untimely. However, the issue of when the conviction became final may be complicated by California's prison-delivery rule, which could ...


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