Cruz v. On Habeas Corpus

Filing 18

ORDER GRANTING Respondent's Motion to Dismiss the Petition 14 ; ORDER DISMISSING the Petition as Untimely 1 ; ORDER DIRECTING the Entry of Judgment for Respondent; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, signed by Magistrate Judge Sheila K. Oberto on 8/23/11. (CASE CLOSED) (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANIBAL ALONSO CRUZ,

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Petitioner,

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v.
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BRENDA CASH,
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Respondent.
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1:10-cv—02207-SKO-HC
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS THE PETITION
(DOC. 14)
ORDER DISMISSING THE PETITION AS
UNTIMELY (DOC. 1)
ORDER DIRECTING THE ENTRY OF
JUDGMENT FOR RESPONDENT
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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parties have consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case,

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including the entry of final judgment, by manifesting their

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consent in writings signed by the parties or their

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representatives and filed by Petitioner on January 10, 2011, and

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on behalf of Respondent on February 10, 2011.

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Pursuant to 28 U.S.C. § 636(c)(1), the

Pending before the Court is Respondent’s motion to dismiss
the petition, which was filed and served on Petitioner by mail on
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March 16, 2011.

No opposition to the motion was filed.

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I.

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Respondent has filed a motion to dismiss the petition on the

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ground that Petitioner filed his petition outside of the one-year

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limitation period provided for by 28 U.S.C. § 2244(d)(1).

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Proceeding by a Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases (Habeas

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Rules) allows a district court to dismiss a petition if it

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“plainly appears from the face of the petition and any exhibits

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annexed to it that the petitioner is not entitled to relief in

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the district court....”
The Ninth Circuit has allowed respondents to file motions to

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dismiss pursuant to Rule 4 instead of answers if the motion to

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dismiss attacks the pleadings by claiming that the petitioner has

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failed to exhaust state remedies or has violated the state’s

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procedural rules.

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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss

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a petition for failure to exhaust state remedies); White v.

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Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to

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review a motion to dismiss for state procedural default); Hillery

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v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).

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Thus, a respondent may file a motion to dismiss after the Court

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orders the respondent to respond, and the Court should use Rule 4

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standards to review a motion to dismiss filed before a formal

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answer.

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See, e.g., O’Bremski v. Maass, 915 F.2d 418,

See, Hillery, 533 F. Supp. at 1194 & n.12.

Respondent's motion to dismiss addresses the untimeliness of

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the petition pursuant to 28 U.S.C. 2244(d)(1).

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facts pertinent to the motion are found in copies of the official

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records of state judicial proceedings which have been provided by
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The material

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the parties, and as to which there is no factual dispute.

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Because Respondent has not filed a formal answer, and

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because Respondent's motion to dismiss is similar in procedural

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standing to a motion to dismiss for failure to exhaust state

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remedies or for state procedural default, the Court will review

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Respondent’s motion to dismiss pursuant to its authority under

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Rule 4.

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II.

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On January 22, 2008, Petitioner was sentenced in the Kern

Background

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County Superior Court as follows:

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twenty-five (25) years to life for forcible sodomy in violation

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of Cal. Pen. Code § 286(c)(2) and forcible oral copulation in

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violation of Cal. Pen. Code § 288a(c)(2); a consecutive term of

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life with the possibility of parole for assault with the intent

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to commit sodomy in the commission of a first degree burglary in

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violation of Cal. Pen. Code §§ 220(b) and 286; and a four-year

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consecutive term for first degree robbery in violation of Cal.

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Pen. Code § 212.5(a).

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judgment was affirmed by the California Court of Appeal, Fifth

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Appellate District, on May 20, 2009.

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two (2) consecutive terms of

(Lodged Document1 (LD) 1; LD 2, 2.)

The

(LD 2, 1.)

Review of the official website for the California Supreme

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Court reflects that Petitioner filed a petition for review in the

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California Supreme Court on June 22, 2009.2

The petition was

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1

The lodged documents were filed by Respondent in support of the motion
to dismiss.
2
The site is www.courts.ca.gov/courts.htm. The Court may take judicial notice of
facts that are capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned, including undisputed
information posted on official web sites. Fed. R. Evid. 201(b); United States
v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National

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denied summarily on August 26, 2009.

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not reflect any other filings on behalf of Petitioner in the

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California Supreme Court or the California Court of Appeal, Fifth

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Appellate District.

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(LD 4.)

The website does

The petition was marked filed on November 29, 2010.

The

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first page names Petitioner as the petitioner and bears the

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address of Petitioner’s institution of confinement in Lancaster,

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California.

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narrative that refers to Petitioner as “Mr. Cruz.” (Id. at 5.)

(Pet. 1.)

The petition is written in a third-person

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In response to a query regarding whether Petitioner was presently

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represented by counsel, the “Yes” box was marked with an “X.”

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When asked to provide the name, address, and telephone number of

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counsel, the petition states the following:

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Karissa Adame, SBN # 263455
1318 “K” Street, Bakersfield, CA 93301
[phone]

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(Id. at 8.)

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signature, the signature of Karissa Adame appears.

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verification of the petition is executed by “K. Adame for Anibal

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Alonso Cruz” and is dated “11/23/10.”

After the prayer, on the line for an attorney’s
The

(Id. at 1.)

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III.

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Because the petition was filed after April 24, 1996, the

The Statute of Limitations

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies to the petition.

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Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d

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1484, 1499 (9th Cir. 1997).

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The AEDPA provides a one-year period of limitation in which

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Lindh v.

Education Association, 629 F.3d 992, 999 (9th Cir. 2010).

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a petitioner must file a petition for writ of habeas corpus.

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U.S.C. § 2244(d)(1).

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As amended, subdivision (d) reads:

(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 –

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(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;

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filing an
violation
States is
filing by

(B) the date on which the impediment to
application created by State action in
of the Constitution or laws of the United
removed, if the applicant was prevented from
such State action;

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(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or

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(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.

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(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.

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28 U.S.C. § 2244(d).
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Generally the statute of limitations is an affirmative
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defense, and the party claiming the defense bears the burden of
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proof unless the limitations statute is considered to be
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jurisdictional.

Kingman Reef Atoll Investments, L.L.C. v. U.S.,

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541 F.3d 1189, 1197 (9th Cir. 2008); Payan v. Aramark Management
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Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007).
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The one-year statute of limitations applicable to petitions for
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federal habeas corpus relief by state prisoners is not
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jurisdictional and does not set forth an inflexible rule
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requiring dismissal whenever the one-year clock has run.

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v. Florida, - U.S.–, 130 S.Ct. 2549, 2560 (2010).

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the AEDPA, the respondent bears the burden of proving that the

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AEDPA limitations period has expired.

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F.Supp.2d 1038, 1050 (C.D.Cal. 2010) (collecting authorities).

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Holland

Thus, under

Ratliff v. Hedgepeth, 712

Where the record reflects that a petition is filed outside

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of the limitation period, and the petitioner is notified that the

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petition is subject to dismissal based on the AEDPA’s statute of

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limitations, the petitioner has the burden of demonstrating that

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the limitation period was sufficiently tolled.

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297 F.3d 809, 812-14 (9th Cir. 2002), abrogated on other grounds

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by Pace v. DiGuglielmo, 544 U.S. 408 (2005).

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Smith v. Duncan,

Here, no circumstances appear to warrant the application of

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§ 2244(d)(1)(B) through (D).

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date on which the judgment became final within the meaning of

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§ 2244(d)(1)(A).

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Thus, the Court will determine the

Under § 2244(d)(1)(A), a judgment becomes final either upon

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the conclusion of direct review or the expiration of the time for

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seeking such review in the highest court from which review could

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be sought.

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2001).

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upon either 1) the conclusion of all direct criminal appeals in

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the state court system, followed by either the completion or

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denial of certiorari proceedings before the United States Supreme

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Court; or 2) if certiorari was not sought, then by the conclusion

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of all direct criminal appeals in the state court system followed

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by the expiration of the time permitted for filing a petition for

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writ of certiorari.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.

The statute commences to run pursuant to § 2244(d)(1)(A)

Wixom, 264 F.3d at 897 (quoting Smith v.
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Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525

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U.S. 1187 (1999)).

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Here, Petitioner’s direct review concluded when his petition

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for review was denied by the California Supreme Court on August

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26, 2009.

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when the period in which a prisoner could petition for a writ of

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certiorari from the United States Supreme Court expired.

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Court Rule 13; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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The ninety-day period began on August 27, 2009, and concluded on

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The time for direct review expired ninety days later,

Supreme

November 24, 2009.
In computing the limitation period, the Court will apply

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Fed. R. Civ. P. 6(a).

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Hall, 548 F.3d 729, 735 n.2 (9th Cir. 2008); Patterson v.

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Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001).

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limitation period began to run on November 25, 2009, and

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concluded one year later on November 24, 2010.

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6(a); Patterson v. Stewart, 251 F.3d at 1245-46.

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petition was not filed until November 29, 2010, it appears on its

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face to have been filed five days beyond the one-year limitations

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period provided for by the statute.

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Fed. R. Civ. P. 6(a); see, Waldrip v.

Thus, the

Fed. R. Civ. P.
Because the

Respondent represents that Respondent is unaware of any

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state habeas petitions filed by Petitioner.

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5:13.)

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appellate courts reflects no entries indicating that any petition

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for writ of habeas corpus was filed in the appellate courts by

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Petitioner.

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database concerning filings in the trial court.

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does not appear that Petitioner filed any petitions seeking post-

(Mot., doc. 14,

A check of the official website for the California

The Court is unaware of any accessible and reliable

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It therefore

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conviction, collateral relief in the state courts.

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Because the petition was signed on November 23, 2010, it

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must be determined whether the mailbox rule applies to render the

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petition timely.

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Cases in the United States District Courts (Habeas Rules)

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provides:

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Rule 3(d) of the Rules Governing Section 2254

A paper filed by an inmate confined in an institution
is timely if deposited in the institution’s internal
mailing system on or before the last day for filing.
If an institution has a system designed for legal mail,
the inmate must use that system to receive the benefit
of this rule. Timely filing may be shown by a
declaration in compliance with 28 U.S.C. § 1746 or by
a notarized statement, either of which must set forth
the date of deposit and state that first-class postage
has been prepaid.

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Under the mailbox rule, a prisoner's pro se habeas petition
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is "deemed filed when he hands it over to prison authorities for
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mailing to the relevant court."

Huizar v. Carey, 273 F.3d 1220,

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1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988).
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The mailbox rule applies to federal and state petitions alike.
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Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing
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Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and
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Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)).

The

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mailbox rule arose to remedy the situation of prisoners who were
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powerless and unable to control the time of delivery of documents
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to the court.

See, Houston v. Lack, 487 U.S. at 270-72.

To

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benefit from this rule, a petitioner must be a prisoner acting
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without the assistance of counsel, and must have delivered the
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document to prison authorities within the limitation period for
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forwarding to a court.

See, Stillman v. LaMarque, 319 F.3d at

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1201.
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In Stillman v. LaMarque, the petitioner and his appointed

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appellate counsel agreed that the petitioner would proceed pro se

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in state and federal habeas proceedings because the petitioner

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could not afford further assistance.

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Although counsel could not assume responsibility for representing

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the petitioner on a pro bono basis, she agreed to provide some

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assistance in preparing pro se state and federal habeas

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petitions.

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arranged with prison officials for the prisoner to sign the

Id.

Stillman, 310 F.3d at 1200.

Counsel prepared a petition for the prisoner and

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petition and for the petition to be returned to counsel

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immediately.

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petition, signed it on behalf of the prisoner, and filed it.

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When prison staff delayed, counsel prepared another

The Stillman court held that the prisoner was not entitled

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to the benefit of the mailbox rule because he was not proceeding

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without the assistance of counsel.

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because counsel had prepared the petition, arranged with the

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prison for the inmate to sign it, and filed it once it had been

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signed, counsel was engaging in the practice of law and was

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assisting the prisoner.

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was not proceeding without the assistance of counsel.

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court concluded that the fact that the petition was intended to

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be filed as a pro se petition did not change the fact that the

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prisoner was being assisted by a lawyer.

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part on counsel’s continued assistance to the petitioner in some

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habeas and appellate matters.

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The court reasoned that

Id. at 1201.

Therefore, the prisoner
Id.

The

The Court relied in

319 F.3d at 1201-02 n.3.

Here, although Petitioner proceeds pro se, he was assisted

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by counsel when the petition was filed.

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reflects that Petitioner indicated he was represented by counsel.
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Indeed, the petition

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(Pet. 8.)

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signed and dated it on Petitioner’s behalf; Petitioner’s

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signature does not appear on the document.

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continued to sign documents on Petitioner’s behalf after the

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petition was filed.

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consent form on behalf of Petitioner which was filed on January

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10, 2011.

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filed a motion to amend the petition to name a proper respondent.

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(Doc. 6.)

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Counsel apparently prepared the petition and even

(Doc. 7.)

Counsel also

On January 5, 2011, Karissa Adame signed a

On the same date, Petitioner signed and

No further filings by counsel appear in the docket.

There

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is also no indication that Petitioner participated in the mailing

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of the petition or that the petition was ever delivered to prison

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authorities for mailing.

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The mailbox rule arose to remedy the situation of prisoners

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who were powerless and unable to control the time of delivery of

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documents to the court.

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72.

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the time of delivery of the petition to the courts such that he

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had to be protected against the uncertainties of the prison

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mailing system.

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drafting and filing of the petition to counsel.

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is no evidence that the petition was delivered to prison

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authorities for forwarding to the court within the limitation

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period.

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the filing of the petition here.

See, Houston v. Lack, 487 U.S. at 270-

Here, it does not appear that Petitioner lacked control over

Rather, it appears that Petitioner entrusted the
Further, there

Therefore, the Court will not apply the mailbox rule to

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Accordingly, it is concluded that without the benefit of any

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tolling, the petition was untimely because it was filed after the

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limitation period ran on November 24, 2010.
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IV.

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Petitioner did not file an opposition to the petition.

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There is no evidence before the Court that Petitioner filed any

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state post-conviction petitions.

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for tolling the running of the statute of limitations pursuant to

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§ 2244(d)(2).

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V.

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The one-year limitation period of § 2244 is subject to

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Statutory Tolling

There is, therefore, no basis

Equitable Tolling

equitable tolling where the petitioner has been diligent, and

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extraordinary circumstances, such as the egregious misconduct of

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counsel, have prevented the petitioner from filing a timely

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petition.

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(2010).

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circumstances were the cause of his untimeliness and that the

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extraordinary circumstances made it impossible to file a timely

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petition.

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The diligence required for equitable tolling is reasonable

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diligence, not “maximum feasible diligence.”

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130 S.Ct. at 2565.

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equitable tolling [under AEDPA] is very high, lest the exceptions

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swallow the rule.”

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Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).

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Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2560
The petitioner must show that the extraordinary

Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

Holland v. Florida,

“[T]he threshold necessary to trigger

Spitsyn v. Moore, 345 F.3d 796, 799 (quoting

Here, in the absence of input from Petitioner and from his

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former counsel, the precise facts are uncertain.

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facts have been presented that demonstrate or suggest a basis for

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equitable tolling of the running of the statute.

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facts to suggest that counsel engaged in any egregious behavior

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or even unprofessional conduct beyond negligence.
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However, no

There are no

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Even assuming counsel was negligent in waiting until almost

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the end of the limitation period to prepare the petition,

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Petitioner would not be entitled to equitable tolling.

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negligence, including a miscalculation of a filing deadline, is

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not a sufficient basis for applying equitable tolling to the §

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2244(d)(1) limitation period.

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Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010); Spitsyn,

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345 F.3d at 800.

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that a filing was late is generally not the result of an

Attorney

Holland, 130 S.Ct. 2549, 2563-64;

A prisoner’s or counsel’s failure to recognize

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“external force” that rendered timeliness impossible, but rather

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is attributable to the petitioner as the result of his own

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actions.

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2011).

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diligence.

Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir.
Further, there is no evidence that Petitioner exercised
Thus, there is no basis for equitable tolling.

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Accordingly, the Court concludes that the petition was

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untimely, and Respondent’s motion to dismiss the petition should

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be granted.

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VI.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

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appealability, an appeal may not be taken to the Court of Appeals

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from the final order in a habeas proceeding in which the

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detention complained of arises out of process issued by a state

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court.

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U.S. 322, 336 (2003).

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only if the applicant makes a substantial showing of the denial

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of a constitutional right.

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petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

§ 2253(c)(2).

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Under this standard, a

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that the issues presented were adequate to deserve encouragement

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to proceed further.

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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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certificate should issue if the Petitioner shows that jurists of

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reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district

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court was correct in any procedural ruling.

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529 U.S. 473, 483-84 (2000).

10

Miller-El v. Cockrell, 537 U.S. at 336
A

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

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the claims in the habeas petition, generally assesses their

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merits, and determines whether the resolution was debatable among

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jurists of reason or wrong.

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applicant to show more than an absence of frivolity or the

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existence of mere good faith; however, it is not necessary for an

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applicant to show that the appeal will succeed.

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Cockrell, 537 U.S. at 338.

Id.

It is necessary for an

Miller-El v.

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A district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the

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applicant.

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Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

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debate whether the petition should have been resolved in a

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different manner.

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of the denial of a constitutional right.

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Petitioner has not made a substantial showing

Accordingly, the Court will decline to issue a certificate

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of appeal ability.

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///

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///
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VII.

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Accordingly, it is ORDERED that:

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1) Respondent’s motion to dismiss the petition is GRANTED;

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and

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2) The petition for writ of habeas corpus is DISMISSED as
untimely; and

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3) The Clerk is DIRECTED to enter judgment for Respondent;
and

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Disposition

4) The Court DECLINES to issue a certificate of
appealability.

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IT IS SO ORDERED.

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Dated:
ie14hj

August 23, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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