United States District Court, E.D. California
TRAVIS S. OVERTON, Petitioner,
J. GASTELO, Respondent.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel on a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. ECF No. 1. He advances three claims: (1) that
insufficient evidence supported his firearm enhancement; (2)
his appellate counsel was ineffective in failing to raise his
firearm enhancement claim on direct appeal; and (3) that the
state courts' failure to address the merits of his
post-conviction claims violated his due process rights.
Id. at 6. Respondent moves to dismiss arguing that:
(1) the petition is untimely; (2) claims one and two of the
petition are procedurally defaulted; and (3) claim three
fails to raise a cognizable federal claim. ECF No. 15 at 1.
For the reasons set forth below, respondent's motion
should be granted.
was convicted in the Solano County Superior Court of two
counts of second degree robbery pursuant to California Penal
Code § 211 and a gun enhancement pursuant to California
Penal Code § 12022(a)(1). ECF No. 1 at 1-2. He appealed
his conviction and, on May 28, 2014, the California Court of
Appeal affirmed. ECF No. 1 at 2-3; ECF No. 15-1 at
2.Petitioner elected not to seek review in
California Supreme Court. ECF No. 1 at 3.
February 17, 2015, petitioner filed a petition for writ of
habeas corpus with the Solano County Superior Court. ECF No.
15-1 at 4-32 (Exhibit 2). The superior court denied that petition
on April 21, 2015. Id. at 35-38 (Exhibit 3).
Petitioner then filed a motion for reconsideration on June
14, 2015 (Id. at 40-42 (Exhibit 4)) and the superior
court denied that motion on July 6, 2015 (Id. at
89-90 (Exhibit 5)). On July 9, 2015 petitioner filed a
“Supplemental Points & Authorities in Support of
Granting a Rehearing on Habeas Corpus.” Id. at
92-95 (Exhibit 6). The superior court construed this as a
second motion for reconsideration and denied it on July 31,
2015. Id. at 97-98 (Exhibit 7).
filed a second petition for writ of habeas corpus on July 22,
2015, also with the Solano County Superior Court.
Id. at 100 -105 (Exhibit 8). The superior court
denied that petition on September 25, 2015 as
“successive, piecemeal, and delayed” and noted
that petitioner had failed “to offer any justification
for why the claims he raises in his petition were not and
could not have been raised at an earlier time . . . .”
Id. at 138 (Exhibit 10).
then filed a petition for writ of habeas corpus with the
California Court of Appeal for the First Appellate District
on November 3, 2015. Id. at 142-147 (Exhibit 11).
The court of appeal denied this petition without comment on
November 10, 2015. Id. at 180 (Exhibit 12).
December 21, 2015, petitioner filed a writ of habeas corpus
with the California Supreme Court (Id. at 182-194
(Exhibit 13)). It was denied without comment on February 3,
2016 (Id. at 228 (Exhibit 14)). Petitioner filed
this federal habeas petition on May 19, 2016. ECF No. 1.
Applicable Legal Standards
Motion to Dismiss
context of federal habeas claims, a motion to dismiss is
construed as arising under rule 4 of the Rules Governing
Section 2254 in the United States District Courts which
“explicitly allows a district court to dismiss
summarily the petition on the merits when no claim for relief
is stated.” O'Bremski v. Maass, 915 F.2d
418, 420 (9th Cir. 1990) (quoting Gutierrez v.
Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)).
Accordingly, a respondent is permitted to file a motion to
dismiss after the court orders a response, and the court
should use Rule 4 standards in reviewing the motion. See
Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12
(E.D. Cal. 1982). Rule 4 specifically provides that a
district court may dismiss a petition if it “plainly
appears from the face of the petition and any exhibits
annexed to it that petitioner is not entitled to relief in
the district court . . . .” Rule 4 of the Rules
Governing Section 2254 Cases.
Statute of Limitations
federal habeas petition must be filed within one year of: (1)
the date the state court judgment became final, either by
conclusion of direct review or the expiration of time to seek
such review; (2) the date on which an impediment to filing
created by state action is removed (if the applicant was
prevented from filing by that action); (3) the date on which
a constitutional right is newly recognized by the Supreme
Court and made retroactive on collateral review; or (4) the
date on which the factual predicate of the claim could have
been recognized through the exercise of due diligence.
See 28 U.S.C. § 2244(d). In most cases, the
statute of limitations begins to run after the state court
judgment becomes final pursuant to 28 U.S.C. §
limitations period is tolled while a properly filed
application for post-conviction relief is pending in state
court. See 28 U.S.C. § 2244(d)(2). An
application for such relief is only “properly
filed”, however, if it is authorized by and in
compliance with state law. See Artuz v. Bennett, 531
U.S. 4, 8 (2000) (“[A]n application is ‘properly
filed' when its delivery and acceptance are in compliance
with the applicable laws and rules governing
filings.”). It bears noting ...