United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. Respondent
moves to dismiss petitioner's amended petition on the
grounds that his challenge to his conviction is barred by the
statute of limitations, and his claim concerning parole fails
to state a cognizable federal habeas claim. Petitioner filed
an opposition, and respondent filed a reply. As set forth
below, the undersigned recommends that the motion to dismiss
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court. . . .” Id. The Court of Appeals for the
Ninth Circuit has referred to a respondent's motion to
dismiss as a request for the court to dismiss under Rule 4 of
the Rules Governing § 2254 Cases. See, e.g.,
O'Bremski v. Maass, 915 F.2d 418, 420 (1991).
Accordingly, the court reviews respondent's motion to
dismiss pursuant to its authority under Rule 4.
Is the Petition Untimely?
argues that petitioner filed his federal habeas petition
decades after the limitations period expired. (ECF No. 32 at
3.) Petitioner counters that under California law, sentencing
errors are not held to time constraints. (ECF No. 37 at 1.)
April 24, 1996, the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) was enacted. Section 2244(d)(1) of
Title 8 of the United States Code provides:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of -
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
2244(d)(2) provides that “the time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward” the
limitations period. 28 U.S.C. § 2244(d)(2). Generally,
this means that the statute of limitations is tolled during
the time after a state habeas petition has been filed, but
before a decision has been rendered. Nedds v.
Calderon, 678 F.3d 777, 780 (9th Cir. 2012). However,
“a California habeas petitioner who unreasonably delays
in filing a state habeas petition is not entitled to the
benefit of statutory tolling during the gap or interval
preceding the filing.” Id. at 781 (citing
Carey v. Saffold, 536 U.S. 214, 225-27 (2002)).
Furthermore, the AEDPA “statute of limitations is not
tolled from the time a final decision is issued on direct
state appeal and the time the first state collateral
challenge is filed because there is no case
‘pending' during that interval.” Nino v.
Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999),
overruled on other grounds by Carey, 536 U.S. at
214. In Carey, the United States Supreme Court held
that the limitation period is statutorily tolled during one
complete round of state post-conviction review, as long as
such review is sought within the state's time frame for
seeking such review. Id., 536 U.S. at 220, 222-23.
State habeas petitions filed after the one-year statute of
limitations has expired do not revive the statute of
limitations and have no tolling effect. Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)
(“section 2244(d) does not permit the reinitiation of
the limitations period that has ended before the state
petition was filed”); Jiminez v. Rice, 276
F.3d 478, 482 (9th Cir. 2001).
purposes of the statute of limitations analysis, the relevant
chronology of this case is as follows:
Petitioner pled no contest to kidnapping for
robbery. (ECF No. 19-3 at 1.) On December 21, 1984,
petitioner was sentenced to life with the possibility of
parole. (Respondent's Lodged Document (“LD”)
1 (ECF No. 19-1).)
Petitioner did not file an appeal.
December 22, 2017,  petitioner filed his first petition for
writ of habeas corpus in the Sacramento County Superior
Court. (LD 2 (ECF No. 19-2).) On February 26, 2018, the
petition was denied in a reasoned decision. (LD 3 (ECF No.
January 24, 2018, petitioner filed a petition for writ of
habeas corpus in the California Supreme Court. (LD 4 (ECF No.
19-4).) On June 13, 2018, the California Supreme Court ...