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Diaz v. Perez

United States District Court, E.D. California

August 5, 2016

JOSE G. DIAZ, Petitioner,
v.
TIM PEREZ, Respondent.

          FINDINGS AND RECOMMENDATION

          CRAIG M. KELLISON MAGISTRATE JUDGE

         Petitioner, 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).

         I. Background

         This 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.

         Petitioner 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[1] 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, 2011.

         Petitioner 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, 2014.

         While 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, 2014.

         II. Motion to Dismiss

         Respondent 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.

         In opposition, petitioner argues his claims are timely filed, the claims are all exhausted and the new claims relate back to the original claims.

         III. Discussion

         Rule 4 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).

         1. Statute of Limitations; Claims 1 and 2

         In the 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 ...


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