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Acosta v. Hill

United States District Court, S.D. California

November 21, 2019

NOEMI DEL CARMEN ACOSTA, Petitioner,
v.
RICK HILL, WARDEN, Respondent.

          REPORT & RECOMMENDATION RE: MOTION TO DISMISS [DOC. NO. 6.]

          HON KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.

         For the 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.

         I. Introduction and Procedural Background

         On 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.[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.)

         Over 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.)

         On or 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.)

         Petitioner 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. No. 1.)

         On 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. 6.)

         Petitioner 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.)

         As 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 time-barred.

         II. The Petition Is Time-Barred Under The AEDPA

         The 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. § 2244(d)(1):

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 ...

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