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Cavazos v. Foss

United States District Court, E.D. California

July 18, 2019

RONNIE J. CAVAZOS, Petitioner,
v.
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.

         On December 11, 2018, [1] 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 prejudice.

         DISCUSSION

         I. Procedural Grounds for 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 of the Rules Governing Section 2254 Cases.

         The 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.

         Respondent's 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.

         II. Limitation Period for Filing Petition for Writ of Habeas Corpus

         On 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.

         The 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. (LD[2] 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.

         III. Statutory Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

         Under 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).

         Petitioner did not file any state collateral actions. Therefore, Petitioner is not entitled to statutory tolling, and the instant petition remains untimely.

         IV.Equitable ...


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