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Salazar v. Barnes

United States District Court, Ninth Circuit

December 30, 2013

RAYNALDO SALAZAR, Petitioner,
v.
RON E. BARNES, Respondent.

ORDER TO SHOW CAUSE

ROBERT N. BLOCK, Magistrate Judge.

On December 16, 2013, [1] petitioner filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 by a Person in State Custody ("Pet.") in the United States District Court for the Southern District of California. Because the Petition purported to be directed to a conviction sustained in Riverside County Superior Court, which lies within the jurisdictional boundaries of the Central District of California, it was transferred to this District and filed here on December 26, 2013.

The Court's review of the Petition reveals that it suffers from two deficiencies.

First, under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he is contending that he is in custody in violation of the Constitution or laws or treaties of the United States. Here, neither of the instructional error claims alleged in the Petition is framed as a federal constitutional claim. Thus, on its face, the Petition does not state a claim cognizable on federal habeas review. Moreover, if the Petition were amended to state any claims cognizable on federal habeas review, [2] the Amended Petition would be subject to dismissal for failure to exhaust state remedies unless petitioner likewise presented the same claim as a federal constitutional claim to the California Supreme Court. In any event, because of the time bar deficiency detailed below, it appears to the Court that leave to amend would be futile.

Second, it appears from the Petition that the claims being alleged by petitioner correspond to the claims that petitioner raised on direct appeal and then presented in his Petition for Review to the California Supreme Court. According to the California Appellate Courts website, the Petition for Review was denied on August 29, 2012. Since this action was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler) , 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 and 118 S.Ct. 1389 (1998).[3] 28 U.S.C. § 2244(d) provides:

"(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 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."

Here, as noted above, the California Supreme Court denied petitioner's Petition for Review on August 29, 2012. Thus, for purposes of 28 U.S.C. § 2244(d)(1)(A), petitioner's judgment of conviction "became final by conclusion of direct review or the expiration of the time for seeking such review" on November 27, 2012, when the 90-day period for petitioner to petition the United States Supreme Court for a writ of certiorari expired. See Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999); Beeler , 128 F.3d at 1286 n.2. Thus, if measured from "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review, " petitioner's last day to file his federal habeas petition was November 27, 2013. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001); Beeler , 128 F.3d at 1287-88.

From the face of the Petition, it does not appear that petitioner has any basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(B) or § 2244(d)(1)(C). Moreover, it does not appear that petitioner has any basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(D) since it appears that petitioner was aware of the factual predicate of both of his instructional error claims as of the date he was convicted and sentenced. See Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance"). Indeed, as noted above, it appears from the Petition that the claims being alleged by petitioner correspond to the claims that petitioner presented in the Petition for Review to the California Supreme Court that he filed prior to the date his judgment of conviction became final.

Thus, unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was November 27, 2013. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001). No basis for statutory tolling under § 2244(d)(2) appears to exist here because, in response to the question on the habeas petition form asking whether petitioner previously filed any state collateral challenges in any state court with respect to this judgment of conviction, petitioner checked off the "no" box with respect to the Superior Court and the California Supreme Court ...


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