Machuca v. Barnes
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/17/16 RECOMMENDING that respondent's unopposed motion to dismiss (Doc. 12 ) be granted. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALEJANDRO MACHUCA,
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Petitioner,
vs.
FINDINGS AND RECOMMENDATIONS
ROB BARNES,
Respondent.
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No. 2:16-CV-0821-MCE-CMK-P
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s
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unopposed motion to dismiss (Doc. 12). Respondent argues the instant petition was filed beyond
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the one-year statute of limitations and is, therefore, untimely.
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I. BACKGROUND
Petitioner challenged a July 8, 2013, prison disciplinary decision. Petitioner
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completed the prison appeal process on October 14, 2013. Petitioner states in the petition that he
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began the state court review process on May 26, 2015, by filing a petition for a writ of habeas
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corpus in state court.
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II. DISCUSSION
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In cases challenging prison disciplinary proceedings, the limitation period begins
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to run the day after the petitioner receives notice of final denial of his administrative appeals.
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See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). There is a presumption, which the
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petitioner may rebut, that notice was received the day the denial was issued. See Valdez v.
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Horel, 2007 WL 2344899 (E.D. Cal. 2007).
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The limitations period is tolled, however, for the time a properly filed application
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for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be
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“properly filed,” the application must be authorized by, and in compliance with, state law. See
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Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v.
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DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a
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state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions
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and the failure to comply with those time limits precludes a finding that the state petition is
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properly filed). A state court application for post-conviction relief is “pending”during all the
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time the petitioner is attempting, through proper use of state court procedures, to present his
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claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered
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“pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549
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U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari
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petition to the Supreme Court was pending). Where the petitioner unreasonably delays between
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state court applications, however, there is no tolling for that period of time. See Carey v. Saffold,
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536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as
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untimely, the federal court must independently determine whether there was undue delay. See id.
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at 226-27.
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In this case, petitioner’s administrative appeal process was completed on October
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14, 2013. Because petitioner did not begin the state court review process until May 2015 – well
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after the one-year limitation period ended in October 2014 – petitioner is not entitled to any
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tolling. The instant federal petitioner was filed in April 2016 and is untimely.
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III. CONCLUSION
Based on the foregoing, the undersigned recommends that respondent’s
unopposed motion to dismiss (Doc. 12) be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 17, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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