(HC) Barton v. Costelo

Filing 10

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 7/28/2022 ORDERING the Clerk of Court to assign a district judge to this action, GRANTING 7 Motion to Proceed IFP, DENYING as MOOT 5 Motion to Proceed IFP, and RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed without leave to amend as time-barred. Chief District Judge Kimberly J. Mueller and Magistrate Judge Jeremy D. Peterson assigned for all further proceedings. Referred to Chief District Judge Kimberly J. Mueller. Objections due within 14 days of service of the findings and recommendations. New Case Number: 2:22-cv-0904-KJM-JDP (HC). (Huang, H)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM BARTON, 10 Petitioner, 11 v. 12 JOSE COSTELO, 13 ORDER THAT: (1) THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO RULE ON THESE FINDINGS AND RECOMMENDATIONS Respondent. 14 15 (2) PETITIONER’S SECOND APPLICATION TO PROCEED IN FORMA PAUPERIS BE GRANTEDAND HIS FIRST BE DENIED AS MOOT FINDINGS AND RECOMMENDATIONS THAT THE PETITION BE DISMISSED AS TIME-BARRED 16 17 ECF Nos. 5,7, & 9 18 19 Case No. 2:22-cv-00904-JDP (HC) Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 20 § 2254. He alleges that a guilty plea that led to a 1976 murder conviction was not voluntary and 21 intelligent. ECF No. 1 at 1, 4.1 This claim is time-barred and should be dismissed. I will also 22 grant petitioner’s second application to proceed in forma pauperis, ECF No. 7, and deny his first, 23 ECF No. 5, as moot. 24 The petition is before me for preliminary review under Rule 4 of the Rules Governing 25 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 26 the habeas petition and order a response to the petition unless it “plainly appears” that the 27 28 1 Petitioner filed a similar petition in Barton v. Gastelo, 21-CV-1933-KJM-JDP, which I also recommended be dismissed at ECF No. 12 in that case. 1 1 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 2 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 Petitioner’s claim, because it concerns a conviction that was finalized more than forty 4 years ago, is time-barred. It was finalized before the Anti-Terrorism and Effective Death Penalty 5 Act of 1996 and, thus, petitioner had until April 24, 1997 to file a petition attacking his 1976 6 conviction. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (“We therefore hold 7 that AEDPA’s one-year grace period for challenging convictions finalized before AEDPA’s 8 enactment date is governed by Rule 6(a) and ended on April 24, 1997 in the absence of statutory 9 tolling.”). Petitioner has not identified any source of statutory tolling, much less a source 10 sufficient to render a more than forty-year old claim timely. Given the age of the claim, I 11 conclude that dismissal without leave to amend is appropriate. Plaintiff may address why tolling 12 should apply, if at all, in his objections to these recommendations. 13 It is ORDERED that: 14 1. The Clerk of Court shall assign a district judge to this action. 15 2. Petitioner’s application to proceed in forma pauperis, ECF No. 7, is GRANTED 16 17 18 and his application to proceed in forma pauperis, ECF No. 5, is DENIED as MOOT. Further it is RECOMMENDED that the petition, ECF No. 1, be DISMISSED without leave to amend as time-barred. 19 These findings and recommendations are submitted to the U.S. District Court Judge 20 presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 21 Practice for the United States District Court, Eastern District of California. Within fourteen days 22 of service of the findings and recommendations, petitioner may file written objections to the 23 findings and recommendations with the court and serve a copy on all parties. That document 24 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 25 District Judge will then review the findings and recommendations under 28 U.S.C. 26 § 636(b)(1)(C). 27 28 2 1 2 IT IS SO ORDERED. 3 Dated: 4 5 July 28, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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