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Zamudio v. Cate

United States District Court, S.D. California

June 12, 2014

MATHEW CATE, Secretary Respondent.


ROGER T. BENITEZ, District Judge.

On March 21, 2012, Petitioner Salvador Zamudio filed a Petition for Writ of Habeas Corpus. (Docket No. 1). Zamudio seeks relief from convictions in California state court pursuant to 28 U.S.C. § 2254. Before this Court is a Report and Recommendation Following Remand, issued by the Honorable Mitchell D. Dembin. (Docket No. 39). For the reasons stated below, the Report and Recommendation is ADOPTED and Petitioner's Objections are OVERRULED. The Petition is DENIED.


On September 4, 2008, Petitioner was convicted of rape with a foreign object, forcible oral copulation, two counts of burglary, robbery, and kidnaping, and was sentenced to twenty-five years to life, plus fourteen years and eight months. (Docket No. 1-1 at 20-21). On appeal, the California Court of Appeal overturned the kidnaping charge, and several related enhancements. ( Id. at 21, 49). Petitioner appealed the remaining charges to the California Supreme Court, and his appeal was denied on April 20, 2010. ( Id. at 37). On June 11, 2010, Petitioner was resentenced on the remaining counts to twenty-five years to life, plus five years and four months. ( Id. at 49). Petitioner filed the instant Petition on March 21, 2012, while his state petition was pending. (Docket No. 1).

On August 1, 2012, the Honorable Mitchell D. Dembin issued a Report and Recommendation recommending that Petitioner's motions to stay and for an evidentiary hearing be dismissed, and that the court sua sponte dismiss the Petition as untimely. (Docket No. 18). On March 18, 2013, the Honorable Irma E. Gonzalez adopted in part and declined to adopt in part the Report and Recommendation. (Docket No. 32). Judge Gonzalez remanded the matter to Judge Dembin to order further briefing "regarding the issues of when Petitioner's conviction became final and the applicability of equitable tolling." ( Id. at 9). On August 28, 2013, this matter was reassigned from Judge Gonzalez to the undersigned. (Docket No. 38). After receiving additional briefing from both Respondent (Docket No. 36) and Petitioner (Docket No. 37), Judge Dembin issued a thoughtful and thorough Report and Recommendation Following Remand on April 24, 2014. (Docket No. 39). Petitioner filed an Objection to the Report and Recommendation. (Docket No. 40). No timely reply to the Objection was received by this Court.


A Petition for Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Pursuant to AEDPA, all federal habeas petitioners are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). Under the circumstances of this case, the statute of limitations began to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).[1]

AEDPA's statute of limitations provision is subject to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). However, equitable tolling is "unavailable in most cases" and is "appropriate only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Id. (citations omitted) (emphasis in Miranda ). The threshold for equitable tolling is "very high." Id. (citation omitted).

Where a timely objection to a report and recommendation has been filed, the district court reviews de novo those portions of the report or specific proposed findings or recommendations. 28 U.S.C. § 636(b)(1).


I. Timing of Petitioner's Final Conviction

In California, a notice of appeal must be filed within sixty days after rendition of judgment. CAL. RULES OF COURT R. 8.308(a). Absent an appeal, a conviction becomes final after sixty days. Id. The notice is deemed timely if delivered to prison officials within the filing period. In re Jordan, 4 Cal.4th 116, 118-19 (1992). As Petitioner was sentenced on June 11, 2010, his conviction became final on August 10, 2010 unless he filed a timely appeal. In the Report and Recommendation, the Magistrate Judge carefully considered Petitioner's claims that he handed a notice of appeal to a prison guard on August 2, 2010. The Report and Recommendation concludes that there is no corroborating, independent evidence in the record to support his claim, and discusses Petitioner's failure to pursue the matter with any court for more than one year. (R&R at 3-6). Applying the relevant California law, the Report and Recommendation concluded that Petitioner's conviction became final sixty days after his sentencing. ( Id. at 6). Petitioner's conviction therefore became final on August 10, 2010.[2]

This Court has carefully considered the Objection filed by Petitioner. Petitioner protests that he is unable to prove that he gave an appeal to prison officials, and argues that the prison industry has "very lucrative commercial interests in keeping prisoners incarcerated." (Obj. at 3). Petitioner also speculates that perhaps something got lost in the mail. ( Id. at 4). The Report and Recommendation clearly considered Petitioner's arguments that he did file an appeal. After giving Petitioner an additional opportunity to submit information, the Magistrate Judge concluded that there was no independent evidence in the record to corroborate his claim that he gave the guards an appeal. The Magistrate Judge noted that Petitioner failed to pursue this matter with any court for more than one year. The Magistrate Judge points out that if a non-incarcerated defendant claimed to file a notice of appeal with no record and without following up for over a year, the appeal would be deemed untimely. Petitioner does not point to any misstatements in the discussion of the facts, flaws in reasoning, or legal errors in the Report and Recommendation. Petitioner provides no authority to undermine the Report and Recommendation's conclusion that the lack of independent evidence and the lengthy delay before asserting to any court that he did file an appeal renders his conviction final sixty days after resentencing. The vague suggestion that something was lost in the mail and general accusations of a possible motive to conceal his appeal do not provide a basis for this Court to conclude that such an appeal was actually filed.

Second, Petitioner appears to suggest that he was somehow denied a right to appeal, and appears to attack the performance of counsel. He claims he was left to "fend for himself, " and appears to object to the fact that no one appealed for him. ( Id. at 2-4). Petitioner makes references to his right to appeal and asks "Is Mr. Zamudio in fact being denied/prevented from having a right to appeal?" ( Id. at 3). He asks whether it was assumed he would somehow know how to request an appeal. ( Id. ) He also appears to suggest that, "considering his disability, " he was not advised of his right to appeal, and that "Even if he was informed, can it be said he would be able to understand?" ( Id. ) Petitioner also makes reference to his difficulties in reading and writing in English or Spanish, and asks if this affects his rights. ( Id. at 2). He also suggests, but does not directly state, that he was not afforded opportunity for oral argument before his conviction was affirmed. ( Id. at 4). It is unclear to this Court whether he refers to the appeals ...

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