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Ayala v. Diaz

United States District Court, C.D. California, Western Division

November 12, 2014

MAURICIO AYALA, Petitioner,
v.
RALPH M. DIAZ, Warden, Respondent

Mauricio Ayala, Petitioner, Pro se, Corcoran, CA.

For Ralph M. Diaz, Warden, Respondent: Charles S Lee, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

STEPHEN J. HILLMAN, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons stated below, the Petition for a Writ of Habeas Corpus should be denied and this action should be dismissed.

I. PROCEEDINGS

Pro se petitioner, a prisoner in the custody of the California Department of Corrections and Rehabilitation, challenges his 2007 conviction in California Superior Court, Los Angeles County (Case No. NA074693).

On June 19, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (" Petition") herein. As best the Court can glean from petitioner's allegations, the Petition alleges the following claims: (1) Petitioner's confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in violation of petitioner's rights under the Fifth and Sixth Amendments; and (2) Petitioner received ineffective assistance of counsel based on his trial counsel's failure to move to suppress petitioner's confession. (Petition at 5, Attachments A and B).

Respondent filed an Initial Answer to the Petition on July 10, 2014. After receiving extensions of time, respondent filed a Return to the Petition (" Return") on October 8, 2014. In the Return, respondent solely contends that the Petition should be dismissed because it is barred by the one-year statute of limitations.

Petitioner did not file a Reply to the Return, or request an extension of time to do so.

Thus, this matter now is ready for decision.

II. PROCEDURAL HISTORY

On June 30, 2008, a Los Angeles County Superior Court jury found petitioner guilty of one count of shooting from a motor vehicle (Count 2), one count of assault with a semi-automatic firearm (Count 3), and one count of possession of a firearm by a felon (Count 4). In addition, the jury found true the following special allegations: that in the commission of the shooting from a motor vehicle, petitioner personally and intentionally discharged a firearm, i.e., a handgun, which proximately caused great bodily injury to the victim, and petitioner personally and intentionally discharged a firearm, i.e., a handgun; that in the commission of the attempted murder, petitioner personally and intentionally discharged a firearm, which caused great bodily injury upon the victim; that in the commission of the assault with a semi-automatic firearm, petitioner personally used a firearm, i.e. a handgun, and petitioner personally inflicted great bodily injury upon the victim; and that the possession of a firearm by a felon was committed for the benefit of, at the direction of, and/or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (See Clerk's Transcript [" CT" ] 116-20).[1] On September 5, 2008, the trial court sentenced petitioner to state prison for a total of 32 years to life, consisting of: 7 years for the shooting from a motor vehicle offense, plus a consecutive term of 25 years to life for the personal and intentional discharge of a firearm, which proximately caused great bodily injury finding; a concurrent, stayed term of 9 years for the assault with a semi-automatic firearm offense, plus a stayed 10-year term for the personal use of a firearm finding and a stayed term for the personal infliction of great bodily injury finding; and stayed terms for the possession of a firearm by a felon offense and the criminal street gang finding. (See CT 138-42).

Petitioner appealed his conviction to the California Court of Appeal. (See respondent's Notice of Lodging [" Lodgment" ] Nos. 2 and 4). In an unpublished Opinion issued on December 15, 2009, the California Court of Appeal reversed and struck the criminal street gang finding, remanded the matter to the trial court to correct the abstract of judgment to reflect the stricken criminal street gang finding, and affirmed the Judgment in all other respects. (See Lodgment No. 5).

Petitioner did not file a Petition for Review with the California Supreme Court. (See Petition at 3).

On February 5, 2013, petitioner filed a petition for writ of habeas corpus with the California Supreme Court, solely alleging the same claims as the claims alleged in the Petition herein. (See Lodgment No. 6).[2] On May 1, 2013, the California Supreme Court summarily denied that habeas petition without citation of authority. (See Lodgment No. 7).

The instant Petition was signed on September 25, 2013, lodged on June 18, 2014, and filed on June 19, 2014.[3]

III. DISCUSSION

A. Absent grounds to either delay the running of or equitably toll the statute of limitations, the Petition is untimely.

Federal habeas corpus relief is governed by statute and codified in Title 28, United States Code at Sections 2241-2255. In an attempt to " curb delays, to prevent 'retrials' on federal habeas, and to give effect to state convictions to the extent possible under law, " Congress, as part of the Anti-terrorism and Effective Death Penalty Act of 1996, revised several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). One such revision amended 28 U.S.C. § 2244 to include a one-year statute of limitation for state prisoners seeking federal habeas relief.[4]

A state prisoner with a conviction finalized after April 24, 1996, such as petitioner, must seek federal habeas relief " within one year of the date his process of direct review came to an end." Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc).

Here, since petitioner did not file a petition for review in the California Supreme Court, petitioner's process of direct review came to an end when the California Court of Appeal denied his appeal.[5] Petitioner's conviction became final on January 24, 2010, 40 days after the California Court of Appeal denied his appeal on December 15, 2009. See Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002); Cal. Rules of Court, Rule 24(a); former Cal. Rules of Court, Rule 28(b). The one-year limitations period therefore began to run against petitioner on January 24, 2010. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, petitioner had until January 24, 2011 to timely seek federal habeas relief.

Petitioner's California Supreme Court habeas petition was filed after the one-year statute of limitations expired. (See Lodgment No. 6). Thus, petitioner's California Supreme Court habeas petition did not statutorily toll the limitations period. See 28 U.S.C. § 2244(d)(2); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) (28 U.S.C. § 2244(d) " does not permit the reinitiation of the limitations period that has ended before the state petition was filed."), cert. denied, 540 U.S. 924, 124 S.Ct. 328, 157 L.Ed.2d 224 (2003).

Petitioner did not file the instant Petition until September 25, 2013, more than 32 months after the statute of limitations expired. Therefore, the Petition is untimely absent grounds for statutory and/or equitable tolling.

2. Petitioner has not alleged grounds for either delaying or equitably tolling the statute of limitations.

Under 28 U.S.C. § 2244(d), the statute of limitations begins to run the later of four possible dates. 28 U.S.C. § 2244(d)(1)(A)-(D). Petitioner has not alleged the applicability of any of the statutory circumstances that would delay the running of the statute of limitations.

The United States Supreme Court has recognized the availability of equitable tolling to the one-year statute of limitations in " extraordinary" circumstances, such as those involving " serious instances of attorney misconduct." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010).

The Ninth Circuit has recognized the availability of equitable tolling in situations where " extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Beeler, supra, 128 F.3d at 1289 (9th Cir. 1997) (emphasis added) (citations omitted). The words " extraordinary" and " impossible" suggest the limited availability of this doctrine. To date, the Ninth Circuit has found very few circumstances which warrant equitable tolling.[6] The lack of precedent finding circumstances worthy of equitable tolling suggests not only the scarce applicability of the doctrine, but also that the circumstances must truly rise to the occasion of being " extraordinary" and petitioner must be able to demonstrate that filing a timely petition was not possible.

Because petitioner has not shown he is entitled to statutory or equitable tolling, the Court finds that the Petition is untimely and therefore should be dismissed.

IV. RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the district court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action with prejudice.


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