Rodriguez v. Martinez

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/17/16 RECOMMENDING that respondent's unopposed motion to dismiss (Doc. 14 ) be granted. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN R. RODRIGUEZ, 12 13 14 15 16 17 No. 2:16-CV-0935-GEB-CMK-P Petitioner, vs. FINDINGS AND RECOMMENDATIONS JOEL MARTINEZ, Respondent. / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s unopposed 19 motion to dismiss (Doc. 14). Respondent argues the instant petition was filed beyond the one- 20 year statute of limitations and is, therefore, untimely. 21 22 23 I. BACKGROUND Petitioner was convicted of being a felon in possession of a firearm and 24 ammunition, as well as transportation of methamphetamine and possession of a controlled 25 substance while in possession of a loaded firearm. He was sentenced to a determinate prison 26 term of eleven years four months. On direct appeal, the California Court of Appeal stayed 1 1 petitioner’s sentence on count five and affirmed the judgment and conviction in all other 2 respects. The California Supreme Court denied direct review on May 14, 2014. Petitioner then 3 filed the following state post-conviction actions:1 4 First Petition San Joaquin County Superior Court Filed August 17, 2015 Denied October 8, 2015 Second Petition California Supreme Court Filed March 9, 2016 Denied April 28, 2016 5 6 7 8 The instant federal petition was filed on April 28, 2016. 9 10 II. DISCUSSION 11 Federal habeas corpus petitions must be filed within one year from the later of: (1) 12 the date the state court judgment became final; (2) the date on which an impediment to filing 13 created by state action is removed; (3) the date on which a constitutional right is newly- 14 recognized and made retroactive on collateral review; or (4) the date on which the factual 15 predicate of the claim could have been discovered through the exercise of due diligence. See 28 16 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court 17 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 18 review. See 28 U.S.C. § 2244(d)(1). 19 /// 20 /// 21 22 23 24 25 26 1 In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court held that a pro se prisoner’s notice of appeal is deemed “filed” at the moment he delivers it to prison officials for mailing to the court. The so-called “prison mailbox rule” has been extended to apply to other legal documents submitted to the court by prisoners. See e.g. Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (applying rule to prisoner’s habeas corpus petition); see also Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001) (discussing rule in context of “prisoner who delivers a document to prison authorities”); Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002) (stating rule in terms of any “legal document” submitted by a pro se prisoner). All filing dates outlined herein give petitioner the benefit of the mailbox rule. 2 1 Where a petition for review by the California Supreme Court is filed and no 2 petition for certiorari is filed in the United States Supreme Court, the one-year limitations period 3 begins running the day after expiration of the 90-day time within which to seek review by the 4 United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 5 Where a petition for writ of certiorari is filed in the United States Supreme Court, the one-year 6 limitations period begins to run the day after certiorari is denied or the Court issued a merits 7 decision. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no petition for 8 review by the California Supreme Court is filed, the conviction becomes final 40 days following 9 the Court of Appeal’s decision, and the limitations period begins running the following day. See 10 Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court of Appeal, the 11 conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the 12 limitations period begins running the following day. If the conviction became final before April 13 24, 1996 – the effective date of the statute of limitations – the one-year period begins to run the 14 day after the effective date, or April 25, 1996. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th 15 Cir. 1999). 16 The limitations period is tolled, however, for the time a properly filed application 17 for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be 18 “properly filed,” the application must be authorized by, and in compliance with, state law. See 19 Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. 20 DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a 21 state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions 22 and the failure to comply with those time limits precludes a finding that the state petition is 23 properly filed). A state court application for post-conviction relief is “pending”during all the 24 time the petitioner is attempting, through proper use of state court procedures, to present his 25 claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered 26 “pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549 3 1 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari 2 petition to the Supreme Court was pending). Where the petitioner unreasonably delays between 3 state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 4 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as 5 untimely, the federal court must independently determine whether there was undue delay. See id. 6 at 226-27. 7 There is no tolling for the interval of time between post-conviction applications 8 where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 9 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no 10 tolling for the period between different sets of post-conviction applications. See Biggs v. 11 Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct 12 review and the filing of a state post-conviction application does not toll the limitations period. 13 See Nino, 1983 F.3d at 1006-07. 14 In this case, petitioner’s conviction became final upon expiration of the 90-day 15 period to seek review by the United States Supreme Court, or on August 12, 2014. The one-year 16 limitations period began to run the following day – August 13, 2014. Because petitioner filed 17 his first state post-conviction action after limitations period ended on August 12, 2015, petitioner 18 is not entitled to any tolling for the time his state petitioners were pending, or for the time 19 between state petitions. The instant federal petition – filed on April 28, 2016 – is untimely. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 4 1 2 3 III. CONCLUSION Based on the foregoing, the undersigned recommends that respondent’s unopposed motion to dismiss (Doc. 14) be granted. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court. Responses to objections shall be filed within 14 days after service of 8 objections. Failure to file objections within the specified time may waive the right to appeal. 9 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 13 DATED: October 17, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 5

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