Bravo v. Foulk

Filing 19

FINDINGS and RECOMMENDATIONS recommending that 16 Respondent's Motion to Dismiss for Petitioner's Failure to Comply With 28 USC 2244(d)'s One Year Limitation Period be GRANTED re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 11/27/2013. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-01312 AWI MJS (HC)
SAMUEL BRAVO,

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FINDINGS AND RECOMMENDATION
Petitioner, REGARDING RESPONDENT’S MOTION
TO DISMISS

v.

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[Doc. 16]
F. FOULK,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Respondent, Warden of High Desert State Prison,

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is represented in this action by Lewis A. Martinez, of the Office of the Attorney General

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for the State of California.

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I.

BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections

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pursuant to a judgment of the Superior Court of California, County of Kern, upon being

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convicted by a jury on August 9, 2010, of first degree murder, four counts of robbery, and

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various enhancements. (Lodged Doc. No. 1.) On September 7, 2010, Petitioner was

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sentenced to an indeterminate term of life without parole, an indeterminate term of 25

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years to life, and a determinate term of 28 years. (Id.)
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Petitioner filed a direct of appeal of the judgment. On February 22, 2012, the Fifth

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District Court of Appeal affirmed the judgment. (Lodged Doc. No. 2.) Petitioner

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subsequently sought review in the California Supreme Court. The petition for review

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was denied on May 9, 2012. (Lodged Docs Nos. 3-4.)

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On August 9, 2013, Petitioner filed the instant federal Petition for Writ of Habeas

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Corpus in this Court. 1 (ECF No. 1.) On October 3, 2013, Respondent filed a Motion to

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Dismiss the petition as being filed outside the one-year limitations period prescribed by

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28 U.S.C. § 2244(d). (Mot. to Dismiss, ECF No. 16.) Petitioner did not file an opposition

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to the motion.

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II.

DISCUSSION

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A.

Procedural Grounds for Motion to Dismiss

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

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dismiss a petition if it “plainly appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing

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Section 2254 Cases.

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The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an

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answer if the motion attacks the pleadings for failing to exhaust state remedies or being

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in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418,

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420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to

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exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using

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Rule 4 as procedural grounds to review motion to dismiss for state procedural default);

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

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respondent can file a motion to dismiss after the court orders a response, and the Court

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should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 &

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Under the mailbox rule, the Court deems petitions filed on the date Petitioner handed a petition
to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d
1056 (9th Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases. Although the petition
was filed on August 15, 2013, pursuant to the mailbox rule the Court considers the petition filed on August
9, 2013, the date Petitioner signed the petition.

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n. 12.

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In this case, Respondent's motion to dismiss is based on a violation of the one-

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year limitations period. 28 U.S.C. § 2244(d)(1). Because Respondent's motion to dismiss

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is similar in procedural standing to a motion to dismiss for failure to exhaust state

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remedies or for state procedural default and Respondent has not yet filed a formal

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answer, the Court will review Respondent’s motion to dismiss pursuant to its authority

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under Rule 4.

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B.

Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A)

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

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Penalty Act of 1996 (hereinafter “AEDPA”). AEDPA imposes various requirements on all

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petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy,

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521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th

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Cir. 1997).

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In this case, the petition was filed on August 9, 2013, and is subject to the

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provisions of AEDPA. AEDPA imposes a one-year period of limitation on petitioners

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seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As

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amended, § 2244, subdivision (d) reads:

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(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 for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;
(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
(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 postconviction 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.
28 U.S.C. § 2244(d).

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Under § 2244(d)(1)(A), the limitations period begins running on the date that the

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petitioner’s direct review became final or the date of the expiration of the time for seeking

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such review. In this case, the California Supreme Court denied review on May 9, 2012.

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The state appeal process became final ninety days later, on August 7, 2012, when the

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time for seeking certiorari with the United States Supreme Court expired. U.S. Supreme

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Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of

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limitations began to run the following day, on August 8, 2012. Patterson v. Stewart, 251

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F.3d 1243, 1246 (9th Cir. 2001).

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Petitioner had one year from August 8, 2012, absent applicable tolling, in which to

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file his federal petition for writ of habeas corpus. However, Petitioner delayed in filing the

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instant petition until August 9, 2013, two days after the statute of limitations period

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expired. Absent the later commencement of the statute of limitations or any applicable

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tolling, the instant petition is barred by the statute of limitations.

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C.

Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)

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28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed

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application for State post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending shall not be counted toward” the one year

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limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held

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the statute of limitations is tolled where a petitioner is properly pursuing post-conviction

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relief, and the period is tolled during the intervals between one state court's disposition of

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a habeas petition and the filing of a habeas petition at the next level of the state court

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system. 536 U.S. 214, 216 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th

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Cir. 1999). Nevertheless, state petitions will only toll the one-year statute of limitations

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under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was
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timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544

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U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or

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determined by the federal courts to have been untimely in state court will not satisfy the

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requirements for statutory tolling. Id.

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Here, Petitioner did not file any post convictions collateral challenges to his

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conviction, and is not entitled to statutory tolling. The present petition was filed on

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August 9, 2013, two days after the expiration of the year statute of limitations period. The

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instant federal petition is untimely.

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D.

Equitable Tolling

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The limitations period is subject to equitable tolling if the petitioner demonstrates:

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“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

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circumstance stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2560-62 (2010);

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quoting Pace v. DiGuglielmo. Petitioner bears the burden of alleging facts that would

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give rise to tolling. Pace, 544 U.S. at 418; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th

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Cir.1993). Petitioner has not presented any evidence regarding equitable tolling.

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Accordingly, Petitioner is not entitled to the benefit of equitable tolling and his petition

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remains untimely.

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III.

CONCLUSION

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As explained above, Petitioner failed to file the instant petition for Habeas Corpus

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within the one year limitation period required by 28 U.S.C. § 2244(d). Petitioner is neither

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entitled to the benefit of statutory or equitable tolling. Based on the foregoing, this Court

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recommends that Respondent’s motion to dismiss be GRANTED.

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IV.

RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for

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Petitioner’s failure to comply with 28 U.S.C. § 2244(d)’s one year limitation period be

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GRANTED.

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This Findings and Recommendation is submitted to the assigned United States

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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and
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Rule 304 of the Local Rules of Practice for the United States District Court, Eastern

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District of California. Within thirty (30) days after the date of service of this Findings and

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Recommendation, any party may file written objections with the Court and serve a copy

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on all parties. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Replies to the Objections shall be served and filed

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within fourteen (14) days after service of the Objections. The Finding and

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Recommendation will then be submitted to the District Court for review of the Magistrate

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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the Order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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November 27, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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Michael J. Seng

ci4d6

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