Joe Qusta Nino v. Jeffrey Beard et al

Filing 38

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS by Judge Stephen V. Wilson for Report and Recommendation (Issued), 35 (sbu)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOE QUSTA NINO,
Petitioner,

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v.

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Case No. CV 14-09928 SVW (RAO)

JEFFREY BEARD,
Respondent.

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ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the

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records and files herein, and the Magistrate Judge’s Revised Report and

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Recommendation. Further, the Court has engaged in a de novo review of those

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portions of the Report to which Petitioner’s Objections were directed. The Court

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hereby accepts and adopts the findings, conclusions, and recommendations of the

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Magistrate Judge.

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Petitioner opposes Respondent’s Motion to Dismiss the Petition as time

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barred, asserting that he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2)

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or, in the alternative, that he qualifies for an exception to AEDPA’s statute of

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limitations because he is actually innocent. The Magistrate Judge recommended

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that the Petition be denied as time barred and dismissed with prejudice.

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///

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The Court has carefully considered Petitioner’s Objections to the Revised

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Report and Recommendation and Petitioner’s argument, citing to Rudin v. Myles,

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781 F.3d 1043 (9th Cir. 2015), that this Court can review for reasonableness a state

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court’s determination of untimeliness of a post-conviction petition. Petitioner’s

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citation to Rudin is unavailing. In Rudin, the Court of Appeals for the Ninth Circuit

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found that the petitioner was not entitled to statutory tolling under § 2244(d)(2) and

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rejected the argument that the Nevada Supreme Court erred in finding her post-

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conviction petition untimely filed. 781 F.3d at 1053-54. “While we may not have

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made the same decision as the Nevada Supreme Court, we are not at liberty to

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second guess that court’s decision when it was acting on direct appeal of the state

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post-conviction court’s judgment. The state supreme court concluded that Rudin’s

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petition was untimely under state law, and ‘[w]hen a postconviction petition is

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untimely under state law, that [is] the end of the matter for purposes of

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§ 2244(d)(2).’” Id. at 1054 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 414, 125

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S. Ct. 1807, 161 L. Ed. 2d 669 (2005)).

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Petitioner argues that the Superior Court of California acted unreasonably in

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determining that Petitioner’s first state habeas petition was untimely, and this Court

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should find his petition “properly filed,” entitling him to statutory tolling under

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AEDPA. Pet’r’s Objs. at 7. The United States Supreme Court has made clear,

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however, that in a federal habeas matter, the district court does not review for

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reasonableness a state court’s determination of untimeliness of a post-conviction

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petition. See Allen v. Siebert, 552 U.S. 3, 5-6, 128 S. Ct. 2, 169 L. Ed. 2d 329

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(2007) (per curiam) (concluding that petitioner’s state postconviction petition was

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not ‘properly filed’ because the state courts deemed it time barred, even though the

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state courts had discretion in enforcing the time bar); accord Zepeda v. Walker, 581

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F.3d 1013, 1018 (9th Cir. 2009) (“[T]he Supreme Court has now twice found state

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habeas petitions improperly filed under AEDPA even though the relevant condition

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to filing was either new or unevenly applied.”) (citing Pace, 544 U.S. 408; Siebert,
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552 U.S. at 6-7).

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“[W]here a state court rejects a petition for failure to comply with conditions

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of filing, that is ‘the end of the matter.’” Zepeda, 581 F.3d at 1018 (citing Carey v.

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Saffold, 536 U.S. 214, 226, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002) (observing

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that “[i]f the California Supreme Court had clearly ruled that Saffold’s 4 1/2-month

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delay was ‘unreasonable,’ that would be the end of the matter” for tolling

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purposes); Pace, 544 U.S. at 417); see also Lakey v. Hickman, 633 F.3d 782, 786

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(9th Cir. 2011) (finding no statutory tolling when state habeas petition was rejected

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as untimely by California Supreme Court even though California’s timeliness rule

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required consideration of diligence).

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overruled, and this Court adopts the Revised Report and Recommendation of the

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Magistrate Judge.

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Accordingly, Petitioner’s Objections are

IT IS THEREFORE ORDERED that the Petition is denied and Judgment
shall be entered dismissing this action with prejudice.

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DATED: July 19, 2017
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE

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