Gomes Reynaldo v. Arnold

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 10/18/16 ordering the court's 10/11/16 findings and recommendations 21 are withdrawn. Within 30 days of the date of this order, petitioner shall address the statute of limitations issues raised by respondent in the 6/02/16 motion to dismiss. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALFONSO GOMES REYNALDO,

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No. 2:15-cv-2182 KJM DB P

Petitioner,
v.

ORDER

A. ARNOLD,
Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for

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writ of habeas corpus under 28 U.S.C. § 2254. On June 2, 2016, respondent moved to dismiss the

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petition on the grounds that it is untimely and petitioner failed to exhaust his state remedies.

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(ECF No. 14.) On August 15, 2016, petitioner was ordered to show cause why this action should

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not be dismissed for his failure to respond to the June 2 motion. (ECF No. 17.) On August 25,

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petitioner moved for a 60-day extension of time to respond to the motion. (ECF No. 18.) On

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August 30, the court granted petitioner a 30-day extension of time. (ECF No. 19.) When that

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thirty day period expired, this court issued findings and recommendations that the action be

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dismissed for petitioner’s failure to respond to the motion to dismiss. (ECF No. 21.) The court

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now notes that petitioner did, in fact, file a response to the motion to dismiss prior to issuance of

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the findings and recommendations. (See ECF No. 20.) Accordingly, the court will withdraw the

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findings and recommendations and consider petitioner’s response.
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Petitioner has filed a document entitled a motion for stay and abeyance. (ECF No. 20.)

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Therein, petitioner appears to concede that his claims are unexhausted. He seeks a stay of these

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proceedings to file his claims in state court to exhaust them. However, staying these proceedings

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will be fruitless if petitioner’s claims were filed too late. Respondent’s motion to dismiss did not

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only raise the exhaustion issue. In that motion, respondent also argues that petitioner’s claims are

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barred by the statute of limitations. Section 2244(d) (1) of Title 28 of the United States Code

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contains a one-year statute of limitations for filing a habeas petition in federal court. The

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limitations period runs from the date that the state court judgment becomes final by the

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conclusion of direct review or the expiration of time to seek direct review. 28 U.S.C.

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§2244(d)(1)(A); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). The time during which a

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“properly filed” application for state post-conviction relief is pending does not count toward this

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one-year period. § 2244(d)(2); Porter, 620 F.3d at 958.

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A habeas petitioner is entitled to equitable tolling of AEDPA's one-year statute of

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limitations only if the petitioner shows: “(1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland

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v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005));

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). An extraordinary circumstance must be

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more than merely “oversight, miscalculation or negligence on the petitioner's part.” Waldron–

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Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Harris v. Carter, 515 F.3d

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1051, 1055 (9th Cir. 2008)). Rather, petitioner must show that some external force “stood in his

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way.” Id.
The court will give petitioner one final opportunity to file an opposition to respondent’s

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motion to dismiss. Petitioner is advised that his failure to file a timely opposition will result in a

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recommendation that this action be dismissed.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The court’s October 11, 2016 Findings and Recommendations (ECF No. 21) are

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withdrawn; and
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2. Within thirty (30) days of the date of this order, petitioner shall address the statute of

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limitations issues raised by respondent in the June 2, 2016 motion to dismiss.

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Petitioner’s failure to do so will result in a recommendation that this action be

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dismissed.

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Dated: October 18, 2016

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DLB:9
DLB1/prisoner-habeas/Reyn2182.mtd oppo

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