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Overton v. Gastelo

United States District Court, E.D. California

May 3, 2017

TRAVIS S. OVERTON, Petitioner,
v.
J. GASTELO, Respondent.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. Procedural Background

         Petitioner 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.[1]Petitioner elected not to seek review in California Supreme Court. ECF No. 1 at 3.

         On 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).[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).

         Petitioner 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).

         Petitioner 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).

         On 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.

         II. Applicable Legal Standards

         A. Motion to Dismiss

         In the 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.

         B. Statute of Limitations

         A 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. § 2244(d)(1).

         The 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 ...


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