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Cornejo v. Lizarraga

United States District Court, E.D. California

March 30, 2018

EFRAIN CORNEJO, Petitioner,
v.
JOE LIZARRAGA, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISOX CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On August 7, 2017, respondent filed a motion to dismiss this action on grounds that it is time-barred under the applicable one-year statute of limitations, 28 U.S.C. § 2244(d)(1). ECF No. 9. Petitioner opposed the motion on September 25, 2017. ECF No. 12. Respondent filed a reply on December 29, 2017. ECF No. 17.

         I. PROCEDURAL HISTORY

         In 2008, petitioner was convicted of simple kidnapping, robbery and possession of stolen property by a Sacramento County jury. See ECF No. 1 at 21; ECF No. 10, Lodged Document (“LD”) 1. On March 12, 2009, he was sentenced to twenty-five years in prison. LD 1. The sentence followed plaintiff's agreement to waive custody credits and appeal rights in order avoid a potential life sentence. See ECF No. 1 at 21; LD 3.

         Petitioner did not file a direct appeal.

         On December 8, 2015, petitioner filed a petition for writ of habeas corpus in Sacramento County Superior Court. ECF No. 10, LD 2. The petition was denied on January 29, 2016. Id., LD 3.

         Thereafter, on February 23, 2016, petitioner filed a habeas petition in the California Court of Appeal. Id., LD 4. It was summarily denied on March 4, 2016. Id., LD 5.

         On June 23, 2016, petitioner filed a habeas petition in the California Supreme Court. ECF No. 10, LD 6. It was summarily denied on August 31, 2016. Id., LD 7.

         The instant petition was filed on October 31, 2016. ECF No. 1. The petition includes an assertion that equitable tolling is appropriate on the ground of disabilities. Id. at 10.

         On August 7, 2017, respondent filed the instant motion to dismiss. ECF No. 9. Petitioner filed an opposition on September 25, 2017, and a duplicate filing on October 16, 2017. ECF Nos. 12, 14. On December 29, 2017, respondent filed a reply. ECF No. 17.

         II. RESPONDENT'S MOTION TO DISMISS

         Respondent argues that petitioner's federal habeas petition is untimely pursuant to 28 U.S.C. § 2244(d). See ECF No. 9 at 2. Respondent contends that because petitioner did not appeal his sentence, it became final on May 11, 2009, sixty-days after the imposition of petitioner's sentence. See id. at 3. As a result, the one-year statute of limitations clock began to run on May 12, 2009 and ran out on May 11, 2010, absent tolling. Id.

         Respondent further contends that because petitioner did not file any post-conviction appeals within the one-year statute of limitations period, no tolling occurred. See id. Therefore, when petitioner filed the instant petition on October 31, 2016, he exceeded the one-year statute of limitations by six years. Consequently, the petition is time-barred. See id.

         Respondent asserts that neither petitioner's mental disabilities, nor his placement in the mental health treatment population in prison, nor his lack of knowledge of the law entitle him to equitable tolling because petitioner has not demonstrated that (1) he pursued his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented him from timely filing. See ECF No. 9 at 5-6 (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)). Respondent further contends that petitioner's mental impairments do not support equitable tolling under Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (equitable tolling available on grounds of mental impairment only where petitioner is unable to personally understand the need to timely file or to prepare the petition, and is unable to meet the filing deadline due to impairment).

         III. PETITIONER'S OPPOSITION

         In petitioner's opposition, [1] he contends that equitable tolling is appropriate because: (1) as a juvenile defendant, he was told by his attorney that one of the conditions of his plea deal was the forfeiture of his right to appeal, and (2) he suffers from a learning and comprehension disability. See ECF No. 14 at 2. Petitioner further asserts that given the ineffective assistance of trial counsel, the State should bear responsibility for the time lapse. See id. at 3 (citing Kimmelman v. Morrison, 477 U.S. 365 (1986) and Murray v. Carrier, 477 U.S. 478 (1986)) . Petitioner also cites to Lafler v. Cooper, 566 U.S. 156 (2012) to assert that he had a ...


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