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Rodriguez v. Hatton

United States District Court, S.D. California

July 5, 2017

CESAR A. RODRIGUEZ, Petitioner,
v.
S. HATTON, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [ECF NO. 6]

          Hon. Barbara L. Major United States Magistrate Judge.

         This Report and Recommendation is submitted to United States District Judge John A. Houston pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On November 3, 2016, Petitioner Cesar Rodriguez, a state prisoner proceeding pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254 by constructively filing his Petition. ECF No. 1 (“Pet.”). On November 28, 2016, the Court issued a briefing schedule requiring Respondent to file a motion to dismiss by January 27, 2017, and Petitioner to file an opposition by February 27, 2017. ECF No. 4. Currently before the Court is Respondent's Motion to Dismiss Petition for being untimely [ECF No. 6 (“MTD”)] and Petitioner's opposition [ECF No. 10 (“Oppo.”)]. For the reasons set forth below, the Court RECOMMENDS that Respondent's motion to dismiss be GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On January 27, 1982, Petitioner pled guilty to second degree murder. See Lodgment 1 at 1, 3 & Lodgment 2 at 1. On February 24, 1982, Petitioner was sentenced to fifteen years to life. See Lodgment 2 & Lodgment 3 at 1. Petitioner did not appeal his conviction. See Docket.

         On June 24, 2016, Petitioner filed a state petition for writ of habeas corpus in the San Diego County Superior Court, arguing that (1) he was convicted of second degree murder in California, “under a criminal statute so unconstitutionally vague, it deprived [him] of due process” under Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”); and (2) the California Board of Parole Hearings' thirty-year arbitrary application of California Penal Code §3041 (a)-(b) rendered those provisions unconstitutionally vague, depriving him of due process and violating the ex post facto clause. Lodgment 3. On July 21, 2016, the San Diego Superior Court denied the petition. Lodgment 4.

         On August 26, 2016, Petitioner filed a state petition in the California Court of Appeal raising the same two claims. Lodgment 5; see also Lodgment 3. On August 29, 2016, the Court of Appeal denied the petition. Lodgment 6.

         On September 6, 2016, Petitioner raised the same claims in a state petition filed in the California Supreme Court. Lodgment 7; see also Lodgments 3 & 5. The California Supreme Court summarily denied the petition without comment or citation to authority on October 26, 2016. Lodgment 8.

         On November 3, 2016, Petitioner filed the instant petition asserting the following claims: (1) “Criminal statutes that do not afford a person with an opportunity to know what the law is, in order to afford a person a fair opportunity to confirm his conduct, are unconstitutionally vague”[1]; (2) California's second degree murder statute is unconstitutional under Johnson because it is void for vagueness; and (3) the California Board of Parole Hearings' thirty-year arbitrary application of California Penal Code §3041 (a)-(b) rendered those provisions unconstitutionally vague under Johnson. Pet.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claim:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (2006 & Supp. 2016).

         DISCUSSION

         Respondent contends that the Petition should be dismissed as untimely because it was filed after the one-year statute of limitations expired. MTD at 3, 10.

         A. The AEDPA ...


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