Nguyen v. Hill

Filing 29

ORDERsigned by Judge Kimberly J. Mueller on 3/31/2014 ORDERING 19 FINDINGS AND RECOMMENDATIONS are ADOPTED, except as to the timeliness analysis; 12 Motion to Dismiss is GRANTED; a Certificate of Appealability is DENIED; Clerk is directed to enter judgment and close the case. CASE CLOSED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN NGUYEN,

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Petitioner,

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No.: 2:12-CV-0493-KJM-CMK-P

v.

ORDER

RICK HILL,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, petitions for a writ of habeas corpus

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under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 25, 2013, the magistrate judge filed findings and recommendations,

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which were served on the parties and contained notice that any objections thereto were to be filed

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within fourteen days. ECF No. 19. Petitioner failed to timely file objections, and final judgment

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was entered on March 29, 2013. ECF No. 21. On petitioner’s Rule 60(b) motion, ECF No. 22,

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the court vacated the judgment and permitted petitioner to file objections, ECF No. 25. He timely

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did so on June 14, 2013. ECF No. 28.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having carefully reviewed the file, the

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court finds the findings and recommendations to be supported by the record and by the proper

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analysis in all but one respect.

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The magistrate judge correctly states the standard governing the tolling provision

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of the Antiterrorism and Effective Death Penalty Act (“AEDPA”): tolling occurs where “a

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

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pertinent judgment or claim is pending,” 28 U.S.C. § 2244(d)(2), unless “the . . . petition is not

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timely filed,” Carey v. Saffold, 536 U.S. 214, 225 (2002). For purposes here, a petition is timely

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“if [it is] filed within a ‘reasonable time’” following a statutorily dictated 120-day period after

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denial of parole. See Stewart v. Cate, 734 F.3d 995, 1000 (9th Cir. 2013) (quoting Evans v.

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Charvis, 546 U.S. 189, 198 (2006) (Stevens, J., concurring)); CAL. PENAL CODE § 3041(b).

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“California courts have given scant guidance as to what the State considers a

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‘reasonable’ length of time to file an application for review.” Id. at 1001 (citation and internal

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quotation marks omitted). “In the absence of [such guidance] . . . or . . . clear indication that a

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particular request for appellate review was timely or untimely, the [court] itself must examine the

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delay in each case and determine what the state courts would have held in respect to timeliness.”

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Evans, 536 U.S. at 199. California’s “general rather than precise” timeliness standard “may make

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it more difficult for federal courts to determine just when a review application . . . comes too

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late,” id. at 193, but the U.S. Supreme Court has “instructed federal courts to apply a thirty-to-

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sixty-day benchmark,” Stewart, 734 F.3d at 1001 (citing Evans, 546 U.S. at 201). Where “filing

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delays [are] substantially longer than the ‘30 to 60 days,’” they are unreasonable. Chaffer v.

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Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010) (quoting Evans, 546 U.S. at 201).

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Although accepting this standard, the court disagrees with the magistrate judge’s

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conclusion that petitioner’s sixty-nine day delay between the state trial court’s denial of his

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petition and his appeal to the California Court of Appeal is unreasonable. The Supreme Court’s

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instruction is illuminating. In describing California’s reasonableness requirement as a “general

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rather than precise” standard that renders a federal court’s task “more difficult,” Evans, 536 U.S.
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at 193, the Court recognizes the malleability in requiring that an unreasonable delay be

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“substantially longer” — although undefined — than one of sixty days. Id. at 201. In light of

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petitioner’s pro se status and the fact that the delay extended only nine days beyond an

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indisputably acceptable sixty, the court does not find the delay to be so substantially long as to be

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unreasonable. The petition is timely.

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Nonetheless, the court agrees with the magistrate judge’s remaining findings and

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recommendations regarding dismissal on cognizability grounds, and adopts on these grounds.

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The court also agrees that though petitioner’s ex post facto claim is cognizable on federal habeas

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review, no relief is available because the state court decision is not “contrary to, or involve[] an

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unreasonable application of, clearly established Federal law, as determined by the Supreme Court

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of the United States . . . .” 28 U.S.C. § 2254(d)(1).

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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253( c )(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue. See

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Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons set forth in the

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magistrate judge’s findings and recommendations, the court finds that issuance of a certificate of

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appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 25, 2013 are ADOPTED, except as to
the timeliness analysis;

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2. Respondent’s motion to dismiss, ECF No. 12, is GRANTED;

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3. A certificate of appealability is DENIED; and

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4. The Clerk of the Court is directed to enter judgment and close the case.

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DATED: March 31, 2014.

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UNITED STATES DISTRICT JUDGE

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