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.

Saechao v. Fox

United States District Court, E.D. California

July 8, 2019

VARN SAECHAO, Petitioner,
v.
FOX, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims both his trial and appellate counsel were ineffective in violation of the Sixth Amendment. Presently before the court is respondent's fully briefed motion to dismiss. (ECF Nos. 13, 16, 17.) For the reasons set forth below, the court will recommend that the motion to dismiss be granted.

         BACKGROUND

         I. State Criminal Proceedings

         On August 21, 2014, petitioner pled guilty to assault with a deadly weapon and spousal abuse in the Butte County Superior Court. (LD 1.)[1] He also admitted that he personally inflicted great bodily injury and used a firearm in connection with the spousal abuse. (Id.) The California Court of Appeal affirmed the judgment on July 13, 2015. (LD 2.) Petitioner did not seek review in the California Supreme Court.

         II. State Habeas Petitions

         Petitioner filed a state habeas petition in the Butte County Superior Court on May 15, 2016.[2] (LD 3 at 85.) On May 24, 2016 the Butte County Superior Court denied his petition. (LD 4.) Petitioner filed a second petition in the Butte County Superior Court on May 21, 2017. (LD 5.) The petition was denied on August 7, 2017. (LD 6.) Petitioner filed a third petition in the Butte County Superior Court on September 2, 2017. (LD 7.) The petition was denied on October 19, 2017. (LD 8.)

         Thereafter, petitioner filed a petition in the California Court of Appeal for the Third Appellate District on November 25, 2017. (LD 9.) The Court of Appeal summarily denied the petition on December 14, 2017. (LD 10.)

         Petitioner filed a fourth petition in the Butte County Superior Court on January 3, 2018. (LD 11.) The petition was denied on January 22, 2018. (LD 12.)

         Petitioner filed a petition in the California Supreme Court on January 2, 2018. (LD 13 at 21.) The California Supreme Court issued a summary denial on April 11, 2018. (LD 14.)

         III. Federal Habeas Proceedings

         Petitioner filed a petition for writ of habeas corpus in this court on May 27, 2018. (ECF No. 1.) The court directed respondent to file a response to the petition on November 29, 2018. (ECF No. 9.) Thereafter, respondent filed the instant motion to dismiss. (ECF No. 13.) Petitioner filed an opposition (ECF No. 16) and respondent has filed a reply (ECF No. 17).

         MOTION TO DISMISS

         Respondent alleges that petitioner's habeas petition was filed beyond the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d). (ECF No. 13.)

         Petitioner opposes the motion arguing that he is entitled to equitable tolling because appellate counsel failed to inform him of the time limits to file an appeal or apply for a writ of habeas corpus even though she knew petitioner did not read, write, or speak English. (ECF No. 16.) Petitioner also argues that he is entitled to equitable tolling because California's rules regarding timeliness are not well-established or consistently applied. (Id. at 4.)

         In his reply, respondent argues that petitioner has not met his burden of showing that he is entitled to equitable tolling and petitioner's argument that California's “reasonable time” policy is ambiguous and not firmly established, is irrelevant. (ECF No. 17.)

         I. Legal Standards Motion to Dismiss

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated”); Vargas v. Adler, No. 1:08-cv-1592 YNP [DLB] (HC), 2010 WL 703211, at *2 (E.D. Cal. 2010) (granting motion to dismiss a habeas claim for failure to state a cognizable federal claim). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus: on its own motion under Rule 4; pursuant to the respondent's motion to dismiss; or after an answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, No. CIV S-07-1360 LKK EFB P, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition pursuant to respondent's motion to dismiss for failure to state a claim), rep. and reco. adopted, No. CIV S-07-1360 (E.D. Cal. Sept. 26, 2008). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curium).

         II. Statute ...


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.