United States District Court, S.D. California
REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION
Karen S. Crawford, United States Magistrate Judge.
Alex R. Charfauros, a state prisoner proceeding pro
se, submitted a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction
in San Diego Superior Court Case for offenses that occurred
on or about October 27, 2010. [Doc. No. 1]. Before the Court
is Respondent Warren Montgomery's Motion to Dismiss the
Petition as untimely [Doc. No. 11] and petitioner's
Opposition to the Motion to Dismiss. [Doc. No. 15].
Report and Recommendation is submitted to United States
District Judge Cynthia Ann Bashant 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. Based on the moving and opposing papers, and for
the reasons outlined below, this Court
RECOMMENDS that Respondent's Motion to
Dismiss be DENIED.
Alex R. Charfauros is in the custody of respondent based upon
a valid judgment entered on August 23, 2013, in San Diego
County where a jury convicted him of fifteen criminal
offenses. Petitioner was found guilty of: second degree
murder of a police officer; four counts of premeditated
attempted murder of a police officer; attempting to harm a
police dog resulting in serious injury; four counts related
to the possession or sale of methamphetamine; resisting,
delaying, or obstructing a police officer and conspiracy to
commit the same offense; conspiracy to commit an act
injurious to the public health or public morals or to pervert
or obstruct justice or the due administration of laws;
possession of a firearm by a felon; and, unlawful possession
of ammunition. In connection with several of the counts, the
jury also found petitioner was vicariously armed with a
firearm. [Doc. No. 12-1, at p. 2]. Petitioner was sentenced
to prison for an indeterminate term of 85 years to life plus
a determinate term of 11 years. [Id. at p. 8].
counsel, petitioner filed an appeal on September 23,
2013. [Doc. No. 12-1]. The California Court of
Appeal rejected petitioner's first three claims, modified
the judgment to reflect corrected sentences on counts 7, 9,
10, 11, 12, and 14, and corrected the laboratory fee.
[Id. at p. 3]. As modified, the court affirmed the
filed a writ of habeas corpus on October 15, 2014, while his
direct appeal was pending. The California Court of Appeal
considered the habeas corpus petition at the same time as his
direct appeal. Concurrent with its order modifying the
judgment on direct appeal, the court filed an order denying
the petition. [Doc No. 12-2]. The California Supreme Court
denied petitioner's petition for review on December 9,
2015. [Doc. No. 12- 3, p.l].
February 10, 2017, petitioner filed a two-sentence federal
petition for writ of habeas corpus. [Doc. No. 1]. In its
Order dated February 16, 2017, Distrit Judge Bashant dimissed
the petition without prejduce because petitioner failed to
name a proper respondent, failed to state grounds for relief,
and failed to allege exhaustion of state judicial remedies.
[Doc. No. 2]. Petitioner was instructed to file a First
Amended Petition by April 15, 2017 to have the case reopened.
[Id.]. On April 10, 2017, petitioner filed a First
Amended Petition. [Doc. No. 3]. He raises the following
grounds for relief: (1) convictions of conspiracy and aiding
and abetting; (2) insufficient evidence to support
impermissible admission of law enforcement testimony; and,
(3) reversal of the life term enhancement due to the
prosecution's failure to comply with fundamental pleading
6, 2017, respondent filed a Motion to Dismiss contending the
First Amended Petition is time-barred under the one-year
statute of limitations contained in the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").
[Doc. No. 11, at p. 2]. On October 27, 2017, petitioner filed
a Traverse in response to the Motion to Dismiss. [Doc. No.
15, pp. 2-3]. Therein, petitioner contends he is entitled to
equitable tolling based on (1) the timely filing of his
original petition; and, (2) the time extension provided to
petitioner by this Court to amend his original Petition.
[Id. at pp. 2-3].
preserves the total exhaustion requirement, but also imposes
a one-year statute of limitations on all federal habeas
petitions. 28 U.S.C. §§ 2244(d) &
2254(b)(1)(A). Accordingly, each claim in a habeas petition
must be exhausted and presented to the federal court within
the one-year period or it is forefeitted. Id. Filing
a federal habeas petition does not toll the statute of
limitations. A petitioner may return to state court to
exhaust his claims, but most do so within the one-year
timeline provided by AEDPA. See Rhines v. Weber, 544
U.S. 269, 274-75 (2005). Petitioners who fail to satisfy this
timeline "run the risk of forever losing their
opportunity for any federal review of their unexhausted
claims." Id. at 275.
2244 (d)(1) of Title 28, United States Code provides a
one-year limitation period for state prisoners to file habeas
corpus petitions in ...