Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tovar v. Rackley

United States District Court, C.D. California

November 17, 2017

Title Victor Tovar
v.
R. Rackley

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed As Untimely and/or Due to Failure to Exhaust

         I.

         INTRODUCTION

         On August 31, 2017, Victor Tovar (“Petitioner”) constructively filed[1] a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the “Petition”). ECF Docket No. (“Dkt.”) 1.[2] For the reasons set forth below, the Petition appears subject to dismissal. The Court will not make a final determination regarding whether the federal Petition should be dismissed, however, without giving Petitioner an opportunity to address these issues.

         II.

         BACKGROUND

         On November 12, 2010, following a jury trial in California Superior Court for the County of Santa Barbara, Petitioner was convicted of two counts of kidnapping to commit robbery in violation of Section 209(b)(1) of the California Penal Code, and one count of second degree robbery in violation of Section 211 of the California Penal Code. See Pet. at 1; see also People v. Tovar, No. B228953, 2012 WL 1201068, at *1 (Cal.Ct.App. Apr. 10, 2012).[3] Petitioner was sentenced to two-concurrent life terms for kidnapping to commit robbery, plus a consecutive three-year term for robbery. Tovar, 2012 WL 1201068, at *1.

         Petitioner filed a direct appeal on November 22, 2010 in the California Court of Appeal. See California Courts, Appellate Courts Case Information, Docket, http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&docid=1962511&doc no=B228953 (last updated Nov. 15, 2017, 12:45 PM). On April 10, 2012, the California Court of Appeal stayed the three-year consecutive sentence on robbery, but otherwise affirmed Petitioner's conviction. Id.; see Pet. at 2; Tovar, 2012 WL 1201068, at *1, *8.

         Petitioner did not file a petition for review in the California Supreme Court. On June 12, 2012, Petitioner wrote a letter to the California Supreme Court “inquir[ing]” about his case. Pet. at 21, 31. On June 25, 2012, the California Supreme Court replied to Petitioner's letter informing Petitioner that after the California Court of Appeal affirmed his conviction on April 10, 2012, the California Supreme Court “lost jurisdiction to act on any petition for review on June 9, 2012.”[4]Id. at 31.

         On May 24, 2017, Petitioner filed a petition for relief from default in the California Supreme Court. Pet. at 3. On May 24, 2017, the California Supreme Court denied the petition and informed Petitioner that the California Supreme Court “lost jurisdiction to act on any petition for review June 11, 2012.” Id. at 3, 47.

         On August 31, 2017, Petitioner constructively filed the instant Petition. Dkt. 1.

         III.

         DISCUSSION

         A. THE PETITION IS UNTIMELY AND IS SUBJECT TO DISMISSAL

         1. THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.