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Tucker v. Gastelo

United States District Court, E.D. California

September 10, 2019

JOSE GASTELO,[1] Respondent.



         I. Introduction

         Petitioner 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 be granted.

         II. Legal Standards

         Rule 4 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.

         III. Is the Petition Untimely?

         Respondent 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.)

         A. AEDPA Standards

         On 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).

         Section 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).

         B. Chronology

         For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

         1. Petitioner pled no contest to kidnapping for robbery.[2] (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).)[3]

         2. Petitioner did not file an appeal.

         3. On December 22, 2017, [4] 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. 19-3).)

         4. On 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 ...

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