Botello v. Biter

Filing 6

ORDER to SHOW CAUSE why the Petition Should not be Dismissed for Violation of the One-Year Statute of Limitations signed by Magistrate Judge Jennifer L. Thurston on 10/04/2016. Show Cause Response due by 11/7/2016.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUDY BOTELLO,

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Petitioner,

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v.

No. 1:16-cv-01376-AWI-JLT (HC)
ORDER TO SHOW CAUSE WHY THE
PETITION SHOULD NOT BE DISMISSED
FOR VIOLATION OF THE ONE-YEAR
STATUTE OF LIMITATIONS

M. BITER, Warden,
[THIRTY-DAY DEADLINE]

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Respondent.

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On September 16, 2016, Petitioner filed the instant habeas petition. A preliminary review

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of the petition reveals that the petition may be untimely and should be dismissed. Therefore, the

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Court will order Petitioner to show cause why the petition should not be dismissed for violation

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of the statute of limitations.

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I.

DISCUSSION

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A.

Preliminary Review of Petition

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

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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

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The Advisory Committee Notes to Rule 8 indicate that a court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.
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2001).

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The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua

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sponte a habeas petition on statute of limitations grounds so long as the court provides the

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petitioner adequate notice of its intent to dismiss and an opportunity to respond. 260 F.3d at

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1041-42. By issuing this Order to Show Cause, the Court is affording Petitioner the notice

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required by the Ninth Circuit in Herbst.

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B.

Limitation Period For Filing Petition For Writ Of Habeas Corpus

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

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1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas

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corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997). The instant

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petition was filed on September 16, 2016, and thus, it is subject to the provisions of the AEDPA.

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The AEDPA imposes a one-year period of limitation on petitioners seeking to file a

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federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In most cases, the limitation

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period begins running on the date that the petitioner’s direct review became final. Here,

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Petitioner was convicted on May 6, 2002, of robbery with the use of a deadly weapon based on

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his plea of nolo contendere. (Doc. 1, p. 1). Petitioner was sentenced to a determinate term of 28

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years.

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California state law governs the period within which prisoners have to file an appeal and,

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in turn, that law governs the date of finality of convictions. See, e.g., Mendoza v. Carey, 449

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F.3d 1065, 1067 (9th Cir. 2006); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1060 (C.D. Cal. 2001)

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(California conviction becomes final 60 days after the superior court proceedings have concluded,

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citing prior Rule of Court, Rule 31(d)). Pursuant to California Rules of Court, Rule 8.308(a), a

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criminal defendant convicted of a felony must file his notice of appeal within sixty days of the

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rendition of judgment. See People v. Mendez, 19 Cal.4th 1084, 1086, 969 P.2d 146, 147 (1999)

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(citing prior Rule of Court, Rule 31(d)). Because it appears that Petitioner did not file a notice of

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appeal, his direct review would have concluded on July 5, 2002, when the sixty-day period for

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filing a notice of appeal expired. The one-year period under the AEDPA would have commenced

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the following day, on July 6, 2002, and Petitioner would have had one year from that date, or
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until July 5, 2003, within which to file his federal petition for writ of habeas corpus. See

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Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001).

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As mentioned, the instant petition was filed on September 16, 2016, which was over

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thirteen years after the date the one-year period had expired. Thus, unless Petitioner is entitled to

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tolling, the instant petition is untimely and should be dismissed.

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C.

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

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Under the AEDPA, the statute of limitations is tolled during the time that a properly filed

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application for state post-conviction or other collateral review is pending in state court. 28 U.S.C.

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§ 2244(d)(2). A properly filed application is one that complies with the applicable laws and rules

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governing filings, including the form of the application and time limitations. Artuz v. Bennett,

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531 U.S. 4, 8 (2000). An application is pending during the time that ‘a California petitioner

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completes a full round of [state] collateral review,” so long as there is no unreasonable delay in

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the intervals between a lower court decision and the filing of a petition in a higher court.

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Delhomme v. Ramirez, 340 F. 3d 817, 819 (9th Cir. 2003), abrogated on other grounds as

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recognized by Waldrip v. Hall, 548 F. 3d 729 (9th Cir. 2008) (per curium) (internal quotation

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marks and citations omitted); see Evans v. Chavis, 546 U.S. 189, 193-194 (2006); Carey v.

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Saffold, 536 U.S. 214, 220, 222-226 (2002).

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Nevertheless, there are circumstances and periods of time when no statutory tolling is

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allowed. For example, no statutory tolling is allowed for the period of time between finality of an

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appeal and the filing of an application for post-conviction or other collateral review in state court,

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because no state court application is “pending” during that time. Raspberry v. Garcia, 448 F.3d

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1150, 1153 n. 1 (9th Cir. 2006). Similarly, no statutory tolling is allowed for the period between

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finality of an appeal and the filing of a federal petition. Id. In addition, the limitation period is

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not tolled during the time that a federal habeas petition is pending. Duncan v. Walker, 563 U.S.

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167, 181-182 (2001). Further, a petitioner is not entitled to statutory tolling where the limitation

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period has already run prior to filing a state habeas petition. Ferguson v. Palmateer, 321 F.3d

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820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations

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period that has ended before the state petition was filed.”); Jiminez v. White, 276 F. 3d 478, 482
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(9th Cir. 2001). Finally, a petitioner is not entitled to continuous tolling when the petitioner’s

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later petition raises unrelated claims. See Gaston v. Palmer, 447 F.3d 1165, 1166 (9th Cir. 2006).

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Petitioner alleges that he filed state habeas petitions in 2015 in the Superior Court of

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Fresno and the California Court of Appeal, Fifth Appellate District (“5th DCA”). However,

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neither of these petitions affords Petitioner any statutory tolling under the AEDPA because the

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one-year period had expired long before the first state petition was filed. Ferguson, 321 F.3d at

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823.

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D.

Later Start Date Pursuant to 28 U.S.C. § 2244(d)(1)(D)

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As set forth above, the statute of limitations will commence on the date on which the

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factual predicate of the claim or claims presented could have been discovered through the

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exercise of due diligence if that date is later than the date on which judgment became final. 28

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U.S.C. § 2244(d)(1). In this case, Petitioner claims the sentencing court imposed an unlawful

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upper term in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Cunningham v.

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California, 549 U.S. 270 (2007). Since Apprendi was decided in 2000, and Petitioner knew he

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was being sentenced to the upper term at the time of sentencing, the factual predicate of

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Petitioner’s claim would have been known to him at the time of sentencing, or could have been

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discovered through the exercise of due diligence. Therefore, § 2244(d)(1)(D) is inapplicable and

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the petition remains untimely.

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E.

Equitable Tolling

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The running of the one-year limitation period under 28 U.S.C. § 2244(d) is subject to

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equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 631, 651-652 (2010);

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Calderon v. United States Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997). The limitation period is

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subject to equitable tolling when “extraordinary circumstances beyond a prisoner’s control make

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it impossible to file the petition on time.” Shannon v. Newland, 410 F. 3d 1083, 1089-1090 (9th

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Cir. 2005) (internal quotation marks and citations omitted). “Generally, a litigant seeking

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equitable tolling bears the burden of establishing two elements: “(1) that he has been pursuing his

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rights diligently, and (2) that some extraordinary circumstance stood in his way.”

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U.S. at 651-652; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “[T]he threshold necessary to
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Holland, 560

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trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.”

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Miranda v. Castro, 292 F. 3d 1062, 1066 (9th Cir. 2002) (citation omitted). As a consequence,

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“equitable tolling is unavailable in most cases.” Miles, 187 F. 3d at 1107. Here, the Court sees

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no basis for a claim of equitable tolling. Accordingly, the petition is untimely and should be

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dismissed.

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F.

Conclusion

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The instant petition is untimely by over thirteen years. However, pursuant to Herbst,

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Petitioner will be given an opportunity to respond and provide any additional evidence or

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information he has pertinent to the issue of timeliness. If Petitioner’s response is not persuasive

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and determinative on the issue, the Court will recommend that the petition be dismissed as

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untimely.

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II.

ORDER

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For the foregoing reasons, the Court ORDERS:

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Within thirty days, Petitioner SHALL show cause in writing why the Petition

should not be dismissed for violation of the one-year statute of limitations in 28 U.S.C. § 2244(d).
Petitioner is forewarned that his failure to comply with this order may result in a
Recommendation that the Petition be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

October 4, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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