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Truong v. Fisher

United States District Court, N.D. California

March 17, 2015

NGHIA TRUONG, Petitioner,
v.
RAYTHEL FISHER JR., [1] Acting Warden, Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AS UNTIMELY; AND DENYING CERTIFICATE OF APPEALABILITY

YVONNE GONZALEZ ROGERS, District Judge.

INTRODUCTION

Petitioner Nghia Truong, an inmate currently incarcerated at Valley State Prison, filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's motion to dismiss the instant petition as untimely under 28 U.S.C. § 2244(d)-the statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Although given an opportunity to do so, Petitioner has not filed an opposition to Respondent's motion.

Having considered all of the papers filed by the parties, the Court GRANTS Respondent's unopposed motion to dismiss the petition as untimely.

BACKGROUND

On September 26, 2007, Petitioner pled no contest in the San Mateo County Superior Court to three counts of residential burglary and admitted an alleged prior residential burglary conviction. Dkt. 13, Ex. A at 1-2; Dkt. 1 at 2. Petitioner was sentenced to 14 years and 4 months in state prison. Id. Petitioner claims a criminal fine of $500.00 was imposed at sentencing. Dkt. 1 at 8. However, he claims that after sentencing, the trial court imposed a fine of $183, 810.23 "by a preponderance of evidence pursuant to rules of Victim Compensation Program Verification Process.'" Id. at 9, 11-12.

On September 24, 2008, the California Court of Appeal affirmed Petitioner's conviction. Dkt. 13, Ex. A. Petitioner did not file a petition for review in the California Supreme Court.

Petitioner alleges that on June 21, 2012, the United State Supreme Court issued its decision in Southern Union, Co. v. United States, ___ U.S. ___, 132 S.Ct. 2344 (2012), which "held that the maximum punishment authorized for [a] particular crime must be proved to [a] jury beyond [a] reasonable doubt where [a] criminal fine is substantial enough to trigger the Sixth Amendment's jury trial guarantee." Dkt. 1 at 9.[2]

On August 27, 2012, Petitioner filed a "Motion for Amended Abstract of Judgment to Include Conduct Credits" in the California Court of Appeal. Dkt. 13, Ex. B. The state appellate court deemed the motion as a state habeas petition and denied it on August 30, 2012. Id.

According to Petitioner, in March 2013, he filed a state habeas petition in the San Mateo County Superior Court, but he claims he never received a decision. Dkt. 13, Ex. C at 6. Respondent claims that the state superior court petition should have been ruled upon by May 2013. Dkt. 13 at note 1 (citing Cal. Rules of Court, rule 4.551(a)(3)(A) ("The court must rule on a petition for a writ of habeas corpus within 60 days after the petition is filed.")). Respondent further argues that the petition must have been denied, which is plausible because the record shows Petitioner continued to seek collateral relief in the state supreme court. Id. at 2.

On May 31, 2013, [3] Petitioner filed a state habeas petition in the California Supreme Court, which was denied on August 14, 2013. Dkt. 13, Ex. C, D.

On September 3, 2013, [4] Petitioner filed the instant petition, in which he alleges that "his right to trial by jury and proof beyond reasonable doubt as guaranteed by the Sixth Amendment was violated by the court's imposition of the $183, 810.23 criminal direct order fine." Dkt. 1 at 9. He further argues that the fine is "consisten[t] with that imposed by the court in Southern Union... as its substantial range of punishment and preponderance of [the]evidence standard of proof is clearly contrary to and an unreasonable application of clearly established law as determined by the Supreme Court." Id. at 10.

DISCUSSION

The AEDPA, which became law on April 24, 1996, imposes a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made ...


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