United States District Court, E.D. California
JOSE G. DIAZ, Petitioner,
TIM PEREZ, Respondent.
FINDINGS AND RECOMMENDATION
M. KELLISON MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent’s motion to
dismiss (Doc. 24). Petitioner filed an opposition to the
motion (titled a traverse) (Doc. 27); Respondent filed a
reply brief (Doc. 30).
case proceeds on petitioner’s second amended petition
(Doc. 12). In his current petition, petitioner raises four
claims: (1) defective arrest warrant violated his Fourth,
Fifth, Sixth and Fourteenth Amendment rights; (2) ineffective
assistance of counsel; (3) denial of due process rights as to
pre-accusation delay, filing of the complaint two years after
petitioner had admitted to conduct; and (4) denial of due
process and right to fair trial when trial court denied
petitioner’s motion for new trial.
is challenging his 2011 conviction out of Solano County.
Petitioner’s conviction was final on February 8, 2011,
the California Supreme Court denied review on November 10,
2010. He filed a petition for writ of habeas corpus in
the Solano County Superior Court on July 25, 2011, alleging
due process violation for filing charges after the statute of
limitations and filing a complaint two years after his
admission of the acts violated his right to speedy trial. The
Solano County Superior Court denied his speedy trial claim on
September 11, 2011, for failure to raise the issue on direct
appeal, and his statute of limitations claim on November 1,
then filed a petition with the California Court of Appeal on
January 5, 2012, which was denied February 15, 2012.
Petitioner waited until July 18, 2012, to file a petition in
the California Supreme Court, which was denied on October 10,
2012. The original petition in this action was filed on
October 18, 2012. A stay was entered in this case in 2013 to
allow petitioner time to return to state court and file a
state habeas petition to exhaust additional claims. Following
denial of his state habeas petition, petitioner filed an
amended petition in 2014. Petitioner then filed a second
amended petition at the court’s direction on May 2,
this action was pending, petitioner filed a second habeas
petition with the Solano County Superior Court on April 9,
2013. This petition was denied on June 6, 2013. Petitioner
then filed a second petition with the California Supreme
Court on October 8, 2013, which was denied on January 21,
Motion to Dismiss
brings this motion to dismiss on the grounds that claims one,
two and three in the amended petition are procedurally
defaulted, and alternatively, that claims one and two are
untimely. Specifically, respondent contends that claims one
and two are untimely as the statute of limitations expired
prior to petitioner filing his amended petition and the two
claims do not relate back to the claims contained in the
original petition. Alternatively, respondent contends that
claims one and two are procedurally defaulted as the
California Supreme Court denied the claims as untimely.
Finally, respondent argues that claim three is procedurally
defaulted as this claim was denied by the state courts for
failure to raise the claim on direct appeal.
opposition, petitioner argues his claims are timely filed,
the claims are all exhausted and the new claims relate back
to the original claims.
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits 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 respondents 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 (9th 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 (9th 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. The petitioner bears the burden of showing
that he has exhausted state remedies. See Cartwright v.
Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Statute of Limitations; Claims 1 and 2
second amended petition, claim 1 challenges a defective
arrest warrant and claim 2 alleges ineffective assistance of
counsel. Neither claim was raised in petitioner’s
original federal habeas petition. Petitioner requested a stay
in this case to return to state court and exhaust those two
claims, which the court granted pursuant to Kelly ...