Ortiz v. Superior Court County of Fresno

Filing 12

ORDER GRANTING 10 Respondent's Motion to Dismiss signed by Magistrate Judge Michael J. Seng on 3/18/2017. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11
12

Case No. 1:16-cv-01824-MJS (HC)
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS

FAUSTINO ORTIZ,

13

Petitioner,

14

v.
[ECF No. 10]

15
16

KIMBERLY A. SEIBEL,

17

Respondent.

18
19
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

20
21
22
23
24
25
26
27
28

corpus pursuant to 28 U.S.C. § 2254. Kimberly A. Seibel, warden of Chuckawalla Valley
State Prison, is hereby substituted as the proper named respondent pursuant to Rule
25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Janet A.
Neeley of the Office of the Attorney General for the State of California. Both parties have
consented to Magistrate Judge jurisdiction. (ECF Nos. 7, 9.)
I.

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

pursuant to a judgment of the Superior Court of California, County of Fresno, resulting

1

1

from a January 31, 2005 jury verdict finding Petitioner guilty of multiple sexual felonies

2

involving his minor daughter. (Lodged Docs. 1-2.) He was sentenced to an aggregate

3

determinate state prison term of twenty-four years and eight months. (Lodged Doc. 2.)

4

On August 31, 2006, the California Court of Appeal, Fifth Appellate District,

5

affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme

6

Court on November 15, 2006. (Lodged Docs. 3-4.)

7

Petitioner did not file any state post-conviction collateral challenges.

8

On December 1, 2016, Petitioner filed the instant federal Petition for Writ of

9

Habeas Corpus in this Court. 1 On February 3, 2017, Respondent filed a Motion to

10

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

11

28 U.S.C. § 2244(d), and because the petition contains unexhausted claims. (Mot. to

12

Dismiss, ECF No. 10.) Over thirty days have passed and Plaintiff has not filed an

13

opposition. The matter stands ready for adjudication.

14

II.

Discussion

15

A.

Procedural Grounds for Motion to Dismiss

16

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

17

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

18

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

19

Section 2254 Cases.

20

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

21

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

22

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

23

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

24

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

25
26
27

1

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 (9t h Cir. 2010); see also Rule 3(d) of the Rules Governing Section 2254 Cases. Although the petition
was filed on December 5, 2016, pursuant to the mailbox rule the Court considers the petition filed on
December 1, 2016, the date Petitioner signed the petition.

28
2

1

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

2

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

3

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

4

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

5

n. 12.

6

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

7

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

8

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

9

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

10

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

11

under Rule 4.

12

B.

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

13

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

14

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

15

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

16

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

17

Cir. 1997).

18

In this case, the petition was filed on December 1, 2016 and is subject to the

19

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

20

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

21

amended, § 2244, subdivision (d) reads:

22
23
24
25
26
27
28

(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;

3

(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

1
2
3

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

4
5
6
7

(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).

8
Under § 2244(d)(1)(A), the limitations period begins running on the date that the
9

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

10
such review. In this case, the California Supreme Court denied review on November 15,
11
2006. The state appeal process became final ninety days later, on February 13, 2007,
12
when the time for seeking certiorari with the United States Supreme Court expired. U.S.
13
Supreme Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA
14
statute of limitations began to run the following day, on February 14, 2007. Patterson v.
15
Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
16
Petitioner had one year from February 14, 2007, absent applicable tolling, in
17
which to file his federal petition for writ of habeas corpus. However, Petitioner delayed in
18
filing the instant petition until December 1, 2016, more than eight years after the statute
19
of limitations period expired. Absent the later commencement of the statute of limitations
20
or any applicable tolling, the instant petition is barred by the statute of limitations.
21
C.
22

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

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

23
application for State post-conviction or other collateral review with respect to the
24

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

25
limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held
26
the statute of limitations is tolled where a petitioner is properly pursuing post-conviction
27
relief, and the period is tolled during the intervals between one state court's disposition of
28
4

1

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

2

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

3

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

4

under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was

5

timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544

6

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

7

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

8

requirements for statutory tolling. Id.

9
10

Here, Petitioner did not file any state post-conviction collateral challenges. Thus,
statutory tolling is inapplicable.

11

D.

Equitable Tolling

12

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

13

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

14

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

15

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

16

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

17

Cir. 1993). Here, Petitioner did not file an opposition and the petition itself presents no

18

grounds for equitable tolling.

19

E.

Exhaustion

20

Respondent, in her motion to dismiss, asserts an alternative ground for dismissal

21

based on failure to exhaust state remedies. (See Mot. to Dismiss at 3-5.) As the petition

22

is untimely and subject to dismissal, in an exercise of judicial efficiency, the Court will not

23

address Respondent's claims regarding failure to exhaust judicial remedies.

24

III.

Conclusion and Order

25

As explained above, Petitioner failed to file the instant petition for habeas corpus

26

within the one year limitation period required by 28 U.S.C. § 2244(d). Petitioner is not

27

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

28

to dismiss for Petitioner’s failure to comply with 28 U.S.C. § 2244(d)’s one year limitation
5

1

period is HEREBY GRANTED.

2
3
4
5
6

IT IS SO ORDERED.
Dated:

March 18, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6