Quiroz v. Clark

Filing 34

ORDER ADOPTING 23 FINDINGS AND RECOMMENDATIONS; ORDER Denying Respondent's 13 Motion to Dismiss; ORDER Referring Matter back to Magistrate Judge for further Proceedings; A CERTIFICATE OF APPEALABILITY IS NOT REQUIRED signed by Chief Judge Anthony W. Ishii on 03/31/2010. (Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 JOAQUIN RAMON QUIROZ, 13 Petitioner, 14 15 v. 16 17 KEN CLARK, Warden, 18 Respondent. 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 21 pursuant to 28 U.S.C. § 2254. 22 On December 23, 2009, the Magistrate Judge issued a Findings and Recommendation that 23 recommended Respondent's motion to dismiss the petition as untimely be DENIED and Respondent 24 be DIRECTED to file an answer to the petition. The Findings and Recommendation was served on 25 all parties and contained notice that any objections were to be filed within thirty (30) days of the date 26 of service of the order. 27 On February 17, 2010, Respondent filed objections to the Findings and Recommendation. On 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-01131 AWI GSA HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #23] ORDER DENYING RESPONDENT'S MOTION TO DISMISS [Doc. #13] ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS

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March 8, 2010, Petitioner filed a reply to Respondent's objections. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. In his objections, Respondent focuses on a four-month interval between two state habeas actions which the Magistrate Judge determined should be statutorily tolled pursuant to 28 U.S.C. § 2244(d)(2). Respondent contends the Magistrate Judge erred in determining that Petitioner's delay was reasonable under state law and then by failing to determine whether Petitioner's delay fell within the scope of the word "pending" for purposes of tolling pursuant to § 2244(d)(2). The Court finds the Magistrate Judge did not err. First, for the reasons set forth in the Findings and Recommendation, which are consistent with the Supreme Court's holding in Evans v. Chavis, 546 U.S. 189, 201 (2006), the four month interval was explained and justified such that the subsequent habeas petition was timely under state law. Second, although the Magistrate Judge does not specifically state so, the application was "pending" for purposes of § 2244(d)(2). Under § 2244(d)(2), the statute of limitations period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review is pending." An application for post-conviction review is pending "while a California petitioner `completes a full round of state collateral review,'" Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir.2003), including during the "period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Evans, 546 U.S. at 191 (emphasis in original). In this case, Petitioner was in the middle of litigating his first round of collateral review during the time period at issue. His state habeas petition had been denied by the superior court and he was properly proceeding to the next appellate level. In addition, as stated above, the notice of appeal filed in the appellate court was timely given the justified delay. For these reasons, Petitioner is entitled to gap tolling for the fourmonth interval thereby making the federal petition timely. Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis.

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Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued December 23, 2009, is ADOPTED IN FULL; 2. Respondent's Motion to Dismiss is DENIED; 3. The matter is REFERRED back to the Magistrate Judge for further proceedings; and 4. As this is not a "final order" which disposes of all claims in the petition, a certificate of appealability is not required. 28 U.S.C. § 1291; Catlin v. United States, 324 U.S. 229, 233 (1945).

IT IS SO ORDERED. Dated: 0m8i78 March 31, 2010 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

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