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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOE QUSTA NINO, Petitioner, 12 v. 13 14 Case No. CV 14-09928 SVW (RAO) JEFFREY BEARD, Respondent. 15 ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the 18 records and files herein, and the Magistrate Judge’s Revised Report and 19 Recommendation. Further, the Court has engaged in a de novo review of those 20 portions of the Report to which Petitioner’s Objections were directed. The Court 21 hereby accepts and adopts the findings, conclusions, and recommendations of the 22 Magistrate Judge. 23 Petitioner opposes Respondent’s Motion to Dismiss the Petition as time 24 barred, asserting that he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) 25 or, in the alternative, that he qualifies for an exception to AEDPA’s statute of 26 limitations because he is actually innocent. The Magistrate Judge recommended 27 that the Petition be denied as time barred and dismissed with prejudice. 28 /// 1 The Court has carefully considered Petitioner’s Objections to the Revised 2 Report and Recommendation and Petitioner’s argument, citing to Rudin v. Myles, 3 781 F.3d 1043 (9th Cir. 2015), that this Court can review for reasonableness a state 4 court’s determination of untimeliness of a post-conviction petition. Petitioner’s 5 citation to Rudin is unavailing. In Rudin, the Court of Appeals for the Ninth Circuit 6 found that the petitioner was not entitled to statutory tolling under § 2244(d)(2) and 7 rejected the argument that the Nevada Supreme Court erred in finding her post- 8 conviction petition untimely filed. 781 F.3d at 1053-54. “While we may not have 9 made the same decision as the Nevada Supreme Court, we are not at liberty to 10 second guess that court’s decision when it was acting on direct appeal of the state 11 post-conviction court’s judgment. The state supreme court concluded that Rudin’s 12 petition was untimely under state law, and ‘[w]hen a postconviction petition is 13 untimely under state law, that [is] the end of the matter for purposes of 14 § 2244(d)(2).’” Id. at 1054 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 15 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). 16 Petitioner argues that the Superior Court of California acted unreasonably in 17 determining that Petitioner’s first state habeas petition was untimely, and this Court 18 should find his petition “properly filed,” entitling him to statutory tolling under 19 AEDPA. Pet’r’s Objs. at 7. The United States Supreme Court has made clear, 20 however, that in a federal habeas matter, the district court does not review for 21 reasonableness a state court’s determination of untimeliness of a post-conviction 22 petition. See Allen v. Siebert, 552 U.S. 3, 5-6, 128 S. Ct. 2, 169 L. Ed. 2d 329 23 (2007) (per curiam) (concluding that petitioner’s state postconviction petition was 24 not ‘properly filed’ because the state courts deemed it time barred, even though the 25 state courts had discretion in enforcing the time bar); accord Zepeda v. Walker, 581 26 F.3d 1013, 1018 (9th Cir. 2009) (“[T]he Supreme Court has now twice found state 27 habeas petitions improperly filed under AEDPA even though the relevant condition 28 to filing was either new or unevenly applied.”) (citing Pace, 544 U.S. 408; Siebert, 2 1 552 U.S. at 6-7). 2 “[W]here a state court rejects a petition for failure to comply with conditions 3 of filing, that is ‘the end of the matter.’” Zepeda, 581 F.3d at 1018 (citing Carey v. 4 Saffold, 536 U.S. 214, 226, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002) (observing 5 that “[i]f the California Supreme Court had clearly ruled that Saffold’s 4 1/2-month 6 delay was ‘unreasonable,’ that would be the end of the matter” for tolling 7 purposes); Pace, 544 U.S. at 417); see also Lakey v. Hickman, 633 F.3d 782, 786 8 (9th Cir. 2011) (finding no statutory tolling when state habeas petition was rejected 9 as untimely by California Supreme Court even though California’s timeliness rule 10 required consideration of diligence). 11 overruled, and this Court adopts the Revised Report and Recommendation of the 12 Magistrate Judge. 13 14 Accordingly, Petitioner’s Objections are IT IS THEREFORE ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice. 15 16 17 18 DATED: July 19, 2017 STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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