United States District Court, S.D. California
CESAR A. RODRIGUEZ, Petitioner,
S. HATTON, Respondent.
REPORT AND RECOMMENDATION FOR ORDER GRANTING
RESPONDENT'S MOTION TO DISMISS [ECF NO. 6]
Barbara L. Major United States Magistrate Judge.
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
AND PROCEDURAL BACKGROUND
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
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.
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.
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.
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”; (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.
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).
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.
The AEDPA ...