United States District Court, E.D. California
RONNIE J. CAVAZOS, Petitioner,
TAMMY FOSS, Warden, Respondent.
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS PETITION [DOC. NO. 16]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
December 11, 2018,  Petitioner filed the instant federal
petition for writ of habeas corpus. (Doc. No. 1.) The
Respondent has moved the Court to dismiss the action as
untimely. The Court finds the petition to be untimely and
recommends that it be DISMISSED with
Procedural Grounds for Motion to Dismiss
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 of the Rules Governing Section 2254 Cases.
Ninth Circuit has allowed respondents to file a motion to
dismiss in lieu of an answer if the motion attacks the
pleadings for failing to exhaust state remedies or being in
violation of the state's procedural rules. See,
e.g., O'Bremski v. Maass, 915 F.2d 418,
420 (9th Cir. 1990) (using Rule 4 to evaluate motion to
dismiss petition for failure to exhaust state remedies);
White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989)
(using Rule 4 as procedural grounds to review motion to
dismiss for state procedural default). Thus, a respondent can
file a motion to dismiss after the court orders a response,
and the court should use Rule 4 standards to review the
motion to dismiss is based on a violation of 28 U.S.C.
2244(d)(1)'s one-year limitation period. Because
Respondent's motion to dismiss is similar in procedural
standing to a motion to dismiss for failure to exhaust state
remedies or for state procedural default and Respondent has
not yet filed a formal answer, the Court will review
Respondent's motion to dismiss pursuant to its authority
under Rule 4.
Limitation Period for Filing Petition for Writ of Habeas
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The AEDPA
imposes various requirements on all petitions for writ of
habeas corpus filed after the date of its enactment.
Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries
v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc),
cert. denied, 118 S.Ct. 586 (1997). The instant
petition was filed on December 11, 2018, and thus, it is
subject to the provisions of the AEDPA.
AEDPA imposes a one-year period of limitation on petitioners
seeking to file a federal petition for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). In most cases, the limitation
period begins running on the date that the petitioner's
direct review became final. In this case, on September 28,
2016, the California Court of Appeal vacated the sentences on
counts two, three and four and remanded the matter.
1 at 38-39.) The Court of Appeal instructed the trial court
to strike the sentences imposed pursuant to section 667,
subdivisions (a) or (d), and to resentence him accordingly.
(Id.) It ordered also the trial court to correct the
determinate abstract of judgment to conform to the trial
court's oral pronouncement of judgment as to count four
on a 10-year enhancement pursuant to section 12022.53,
subdivision (b). (Id.) The Court affirmed the
judgment was otherwise. (Id.) Petitioner sought
review in the California Supreme Court, which was denied on
December 21, 2016. (LD 2, LD 3.) On March 8, 2017, the
Stanislaus County Superior Court resentenced Petitioner in
accordance with the Court of Appeal's opinion issued on
September 28, 2016. (LD 4.) Petitioner filed a petition for
writ of certiorari in the United States Supreme Court, which
was denied on October 2, 2017. (LD 5, LD 6.) The statute of
limitations commenced on the following day on October 3,
2017. Absent applicable tolling, the last day to file a
federal habeas petition was October 2, 2018, though
Petitioner did not file it until December 11, 2018.
Statutory Tolling of the Limitation Period Pursuant to 28
U.S.C. § 2244(d)(2)
the AEDPA, the statute of limitations is tolled during the
time that a properly filed application for state
post-conviction or other collateral review is pending in
state court. 28 U.S.C. § 2244(d)(2). A properly filed
application is one that complies with the applicable laws and
rules governing filings, including the form of the
application and time limitations. Artuz v. Bennett,
531 U.S. 4, 8 (2000). An application is pending during the
time that “a California petitioner completes a full
round of [state] collateral review, ” so long as there
is no unreasonable delay in the intervals between a lower
court decision and the filing of a petition in a higher
court. Delhomme v. Ramirez, 340 F.3d 817, 819 (9th
Cir. 2003), abrogated on other grounds as recognized by
Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008) (per
curiam); see Evans v. Chavis, 546 U.S. 189,
193-194 (2006); Carey v. Saffold, 536 U.S. 214, 220,
222-226 (2002); Nino v. Galaza, 183 F.3d 1003, 1006
(9th Cir. 1999).
did not file any state collateral actions. Therefore,
Petitioner is not entitled to statutory tolling, and the
instant petition remains untimely.