United States District Court, S.D. California
REPORT & RECOMMENDATION RE: MOTION TO DISMISS
[DOC. NO. 6.]
KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.
reasons set forth below, the Court recommends that the Motion
to Dismiss filed by Respondent Warden Rick Hill
(“Respondent”) be GRANTED and that the First
Amended Petition for Writ of Habeas Corpus filed by
Petitioner Noemi Del Carmen Acosta (“Petitioner”)
be DISMISSED with prejudice.
Introduction and Procedural Background
January 26, 2016, the abstract of judgment was entered by the
Superior Court of California, County of San Diego, in case
number SCD260588, for Petitioner's plea of guilty to one
count of willful harm or injury to a child, Cal. Penal Code
§ 273a(a), and admission of personally inflicting great
bodily injury on a child victim who was under the age of
five. Cal. Penal Code § 12022.7(d). (Doc. No. 7-1,
Lodgment 1, p. 1.) She was sentenced to nine years in state
prison and did not appeal the conviction. (Doc. No. 7-1,
Lodgment 1, p. 1; Doc. No. 7-4, Lodgment 4, p. 1; Doc. No.
7-6, Lodgment 6, p. 1.)
three years later, on March 13, 2019, Petitioner
constructively filed a state habeas corpus petition in the
San Diego County Superior Court, case HC23781, raising a
collateral challenge to the judgment entered in SCD260588.
(Doc. Nos. 7-2 & 7-3, Lodgments 2 & 3.) In that
petition she alleged: 1) she was provided ineffective
assistance of counsel because her trial attorney did not
adequately investigate the relevant facts and law; and 2) her
guilty plea is constitutionally invalid because it was
coerced by trial counsel and was not entered into
intelligently, knowingly, or voluntarily. (Doc. No. 7-3,
Lodgment No. 3, pp. 12-16.) That court denied the petition on
April 18, 2019, in substantial part because it was untimely
filed. (Doc. No. 7-4, Lodgment No. 4, pp. 2-3.)
about May 13, 2019, Petitioner constructively filed a
Petition for Writ of Habeas Corpus in the California Court of
Appeal, Fourth Appellate District, Division One, case
D075841, asserting the same grounds for relief raised in her
previous habeas petition filed in the Superior Court. (Doc.
No. 7-5, Lodgment No. 5, pp. 17-22.) On May 21, 2019, the
Court of Appeal denied the petition because it was untimely.
(Doc. No. 7-6, Lodgment 6, p. 2.)
did not file a state habeas corpus petition in the California
Supreme Court prior to initiating this action with the
constructive filing of her federal habeas petition on June
19, 2019. (cf. Doc. No. 7-7, Lodgment 1, and Doc.
September 6, 2019, Respondent filed a Motion to Dismiss in
which he argues the petition should be dismissed with
prejudice because Petitioner's claims are time-barred by
the one-year statute of limitations set out in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d). (Doc. No.
has not filed an opposition to the Motion to Dismiss,
however, on November 14, 2019, she filed a First Amended
Petition, in which she raises the same claims made to the
state courts and requests the Court stay her federal claims
while she pursues exhaustion with the California Court of
Appeal. (Doc. No. 9, pp. 7 & 17-22.) Respondent filed a
brief in reply to Petitioner's request for a stay and
abeyance on November 15, 2019. (Doc. No. 10.)
discussed below, Respondent's Motion to Dismiss should be
granted and the First Amended Petition should be dismissed
with prejudice because Petitioner's claims are
The Petition Is Time-Barred Under The AEDPA
statute of limitations under the AEDPA applies to
Petitioner's presentation of claims in this Court.
Calderon v. U.S. District Court (Beeler), 128 F.3d
1283, 1286-87 (9th Cir. 1997), as amended on denial of
rhg. and rhg. en banc, cert. denied, 522 U.S. 1099
(1998), overruled on other grounds in Calderon v. U.S.
District Court, 163 F.3d 530 (9th Cir. 1998), cert.
denied, 523 U.S. 1063 (1999). Pursuant to 28 U.S.C.
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 ...