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Smith v. Gastelo

United States District Court, C.D. California

July 2, 2019

Garey Lee Smith
v.
Josie Gastelo

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

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order Denying Respondent's Motion to Dismiss Without Prejudice and Requiring Briefing on the Merits [Dkt. 12]

         Petitioner Garey Lee Smith (“Petitioner”) has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. Respondent filed a Motion to Dismiss (“Motion”) arguing the Petition is untimely. Petitioner filed an Opposition (“Opposition”). For the reasons stated below, the Court DENIES Respondent's Motion without prejudice.

         I. PROCEDURAL HISTORY

         On May 10, 2012, after a jury trial, Petitioner was convicted of first degree murder with use of a deadly weapon in Riverside County Superior Court (“Superior Court”). ECF Docket No. (“Dkt.”) 1 at 2; Lodg. 1, Abstract of Judgment.[1] On June 13, 2012, Petitioner was sentenced to a total term of fifty years to life in state prison. Id.

         Petitioner filed a direct appeal in the California Court of Appeal (“Court of Appeal”). Lodg. 2. On April 8, 2014, the Court of Appeal affirmed Petitioner's conviction in a reasoned decision. Lodg. 5.

         Petitioner filed a petition for review in the California Supreme Court. Lodg. 6. On July 16, 2014, the California Supreme Court denied review. Lodg. 7.

         On October 26, 2017, Petitioner constructively[2] filed a state petition for writ of habeas corpus (“First Habeas Petition”) in the Superior Court. Lodg. 8. Petitioner explained his mental health prevented him from filing the First Habeas Petition earlier. Id. at 24. Petitioner also explained he had only recently received his case file from his trial counsel containing “more than one thousand pages of [Petitioner's] mental health records that had been previously withheld from him.” Id. On November 21, 2017, the Superior Court denied the First Habeas Petition for failure “to state a prima facie factual case supporting the petitioner's release” and failure “to establish prejudice.” Lodg. 9.

         On January 17, 2018, Petitioner constructively filed a state petition for writ of habeas corpus in the Court of Appeal (“Second Habeas Petition”). Lodg. 10. Petitioner again explained the delay in filing was due to his mental health and the quantity of records he had recently received from his trial counsel. Id. at 29. On April 16, 2018, the Court of Appeal summarily denied the Second Habeas Petition. Lodg. 11.

         On May 16, 2018, Petitioner constructively filed a state habeas petition in the California Supreme Court (“Third Habeas Petition”). Lodg. 12. Petitioner again explained the delay in filing was due to his mental health and the quantity of records he had recently received from his trial counsel. Id. at 49. On January 16, 2019, the California Supreme Court denied the Third Habeas Petition. Lodg. 13.

         On February 10, 2019, Petitioner constructively filed the instant Petition. Dkt. 1, Pet. On April 24, 2019, Respondent filed the instant Motion arguing the Petition is untimely by over three years and Petitioner is not entitled to equitable tolling. Dkt. 12, Mot. On May 23, 2019, Petitioner filed an Opposition. Dkt. 17. The matter thus stands submitted.

         II. ANALYSIS

         A. THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR LIMITATIONS PERIOD

         Petitioner filed the Petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Pet. at 8. Therefore, the requirements for habeas relief set forth in AEDPA apply. Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). AEDPA “sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 2012) (citation omitted). Ordinarily, the limitations period runs from the date on which the prisoner's judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1) (“Section 2244(d)(1)”). “When, on direct appeal, review is sought in the state's highest court but no petition for certiorari to the United States Supreme Court is filed, ...


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