Guzman v. California State Prison Corcoran

          FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS (Doc. 10) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF COURT TO SUBSTITUTE NAME OF PROPER RESPONDENT

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         In this action, Respondent contends the petition for writ of habeas corpus was not filed timely. The Court agrees and recommends the petition be DISMISSED.

         I. PROCEDURAL HISTORY

         The instant petition was filed on January 15, 2016.^[1] On February 1, 2016, the Court ordered Respondent to file a response within sixty days. (Doc. 5). On April 1, 2016, Respondent filed the instant motion to dismiss the petition as untimely. (Doc. 10). On May 4, 2016, Petitioner filed his opposition to the motion to dismiss. (Doc. 13). On June 20, 2016, Respondent filed a reply. (Doc. 16).

         II. DISCUSSION

         A. Procedural Grounds for Motion to Dismiss

         As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

         The Ninth Circuit has allowed Respondent’s to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9^th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9^th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F.Supp. at 1194 & n. 12.

         B. Limitation Period For Filing Petition For Writ Of Habeas Corpus

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9^th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on January 15, 2016, and thus, it is subject to the provisions of the AEDPA.

         The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In most cases, the limitation period begins on the date that the petitioner’s direct review became final.

         Here, the Petitioner was convicted of second degree murder and assault with a firearm, along with a number of sentencing enhancements, and was sentenced to an indeterminate term of 42-years-to-life on June 9, 2008. (Lodged Document (“LD”) 1). On January 27, 2010, the California Court of Appeal, Fifth Appellate District (“5^th DCA”), affirmed the judgment on direct appeal. (LD 2). On April 14, 2010, the California Supreme Court denied the petition for review. (LD 4).

         Direct review would therefore have concluded on July 13, 2010, when the ninety-day period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9^th Cir.1999); Smith v. Bowersox, 159 F.3d 345, 347 (8^thCir.1998). Petitioner would then have had one year from the following day, July 14, 2010, or until July 13, 2011, absent applicable tolling, within which to file his federal petition for writ of habeas corpus.

         As mentioned, the instant petition was filed on January 15, 2016, approximately four and one-half years after the date the one-year period would have expired. Thus, unless Petitioner is entitled to either statutory or equitable ...