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Charfauros v. Montgomery

United States District Court, S.D. California

November 14, 2017

ALEX RAY CHARFAUROS, Petitioner,
v.
WARREN MONTGOMERY, Warden Respondent.

          REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION TO DISMISS

          Hon. Karen S. Crawford, United States Magistrate Judge.

         INTRODUCTION

         Petitioner 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[1] 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].

         This 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.

         BACKGROUND

         Petitioner 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].

         Through counsel, petitioner filed an appeal on September 23, 2013.[2] [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 judgment. Id.

         Petitioner filed a writ of habeas corpus on October 15, 2014, while his direct appeal was pending.[3] 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].

         PROCEDURAL BACKGROUND

         On 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 requirements. [Id.].

         On July 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].

         DISCUSSION

         AEDPA 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.

         Section 2244 (d)(1) of Title 28, United States Code provides a one-year limitation period for state prisoners to file habeas corpus petitions in ...


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