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Torres v. Diaz

United States District Court, N.D. California

May 10, 2017

JUAN MATIAS TORRES, Petitioner,
v.
RALPH M. DIAZ, Warden, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS NEW CLAIMS IN AMENDED PETITION AS UNTIMELY

          YVONNE GONZALEZ ROGERS United States District Judge

         Petitioner Juan Matias Torres, a state prisoner currently incarcerated at California State Prison-Solano (“CSP-Solano”), filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Thereafter, Petitioner filed his amended petition, which is the operative petition in this action. Dkt. 59.

         Before the Court is Respondent's motion to dismiss new claims in his amended petition as untimely under the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). Dkt. 65.

         Also before the Court is Petitioner's filing entitled, “Motion for Request for Update and Case Inquiry and Request for Extension of Time to Reply to Any Court Orders or Motions Filed, If Necessary.” Dkt. 73. In this aforementioned motion, Petitioner explains that he was unable to notify the Court about his temporary transfer out of CSP-Solano from March 22, 2017 through April 20, 2017. Id. at 1-2.[1] He requests an update and copies of any orders or motions that were filed during his transfer. Id. at 2. He also requests for an extension of time to respond to such orders and motions. Id. Because there were no orders or motions filed during the time frame Petitioner was transferred, the Court DENIES his motion as unnecessary. Dkt. 73.

         Having read and considered the papers submitted and being fully informed, the Court GRANTS Respondent's motion to dismiss.

         I. BACKGROUND

         On August 11, 2006, in Santa Clara County Superior Court case number CC591335, the prosecution charged Petitioner with assault on a peace officer with a deadly weapon, exhibition of a deadly weapon with intent to resist arrest, evading a peace officer, driving under the influence, driving with .08 percent or more blood alcohol, resisting or delaying a peace officer, carrying a concealed dirk or dagger, and resisting an executive officer. Resp't Ex. 1A at 106-111. The prosecution further alleged two prior prison term convictions, two serious felony convictions, two prior “strike” convictions, and a prior conviction for driving under the influence. Id. at 106-113.

         On February 23, 2007, in Santa Clara County Superior Court case number CC629776, the prosecution charged Petitioner with two counts of assault with a deadly weapon and one count of resisting or delaying a peace officer. Resp't Ex. 1B at 323-325. The prosecution further alleged great bodily injury enhancements, two prior serious felony convictions, two prior “strike” convictions, and an on-bail enhancement. Id. at 323-326.

         On April 25, 2007, Petitioner pleaded no contest to the charges and admitted the allegations in both cases. Resp't Exs. 1A at 126-127; 1B at 333.

         On December 18, 2007, the trial court sentenced Petitioner in both cases to state prison for a total determinate term of 36 years and 8 months, with a consecutive indeterminate term of 25-years-to-life. Resp't Exs. 1A at 134-137; 2C at 87-89.

         On December 20, 2007, Petitioner filed a notice of appeal in both cases.[2] Resp't Exs. 1A at 138; 1B at 441. The cases were considered together on appeal in California Court of Appeal case number H032441. Resp't Ex. 8 at 1. On February 18, 2009, the state appellate court struck one of the serious prior felony convictions in case number CC591335, thereby reducing the sentence in that case to seven years and eight months; struck one of the five-year serious prior felony convictions in case number CC629776, thereby reducing the determinate sentence in that case to 19 years; and reduced the restitution and parole revocation fines in both cases to $10, 000 each. See Id. The state appellate court otherwise affirmed the judgments. See id.

         On March 23, 2009, the People filed a petition for review in California Supreme Court case number S171429. Resp't Ex. 9. On May 20, 2010, the California Supreme Court transferred the case back to the state appellate court with directions to vacate its decision and reconsider the cause in light of People v. Soria, 48 Cal.4th 58 (2010). Resp't Ex. 10.

         On July 28, 2010, the state appellate court withdrew that part of its previous opinion pertaining to the restitution and parole revocation fines, left intact its decision regarding the sentence reductions, and otherwise affirmed the judgments. Resp't Ex. 11.

         On August 29, 2010, Petitioner filed a petition for review in California Supreme Court case number S186045, which was denied on October 13, 2010. Resp't Exs. 12, 13.

         On April 5, 2011, the trial court resentenced Petitioner in accordance with the opinion of the California Court of Appeal. Resp't Ex. 19.

         On April 20, 2011, Petitioner filed a notice of appeal in case number H036807, but he later voluntarily abandoned the appeal (in a notice filed on July 14, 2011). Resp't Exs. 20, 21.

         On July 14, 2011, the state appellate court dismissed the appeal and issued a remittitur. Resp't Ex. 21.

         On March 12, 2012, [3] Petitioner filed a petition for writ of habeas corpus in the Santa Clara County Superior Court case number CC591335/CC629776, which was denied on June 4, 2012. Resp't Exs. 22, 23.

         On June 25, 2012, [4] Petitioner filed a petition for writ of habeas corpus in California Court of Appeal case number H038465, which was denied on July 20, 2012. Resp't Exs. 24, 25.

         On August 5, 2012, Petitioner filed a petition for writ of habeas corpus in California Supreme Court case number S204744, which was denied on October 17, 2012, with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). Resp't Exs. 26, 27.

         On November 29, 2012, Petitioner filed the original petition for writ of habeas corpus in this Court. Dkt. 1. In his original petition, Petitioner raised the following three ineffective assistance of counsel claims, namely for: (1) failing to object to “over enhancements which led to an illegal sentence”; (2) failing to object to blood alcohol evidence; and (3) advising him that if he pled no contest, he “would receive a sentence of 6-16 years” at a Romero[5] hearing, and then failing to comply with Petitioner's request to withdraw his plea before the Romero hearing. Id. at 6.

         On January 30, 2013, the Court issued an order directing Respondent to show cause why the petition should not be granted. Dkt. 5.

         On June 19, 2013, after being granted an extension of time to do so, Respondent filed an answer. Dkts. 11, 11-1, 12. On August 23, 2013, Petitioner filed a traverse. Dkt. 16.

         On or about April 11, 2014, Petitioner filed a petition for writ of habeas corpus in Santa Clara County Superior Court case number CC591335/CC629776, “[i]n regards to the [T]here Strikes Law [R]eform [A]ct of 2012.” Dkt. 42 at 2. In his petition, Petitioner argued “that his strike priors d[id] not constitute . . . a serious or violent felony as a strike prior and should be stricken.” Id. On April 30, 2014, the state superior court denied the petition. Id.

         On June 18, 2014, Petitioner appealed the superior court's denial of his habeas petition to the California Court of Appeal in case number H041112, and was appointed counsel on appeal. Id. at 2-3; Resp't Ex. 28. On May 28, 2015, after the case was fully briefed, Petitioner filed a motion requesting that the appeal be dismissed. Resp't Ex. 28. ...


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