Escobar v. Muniz

Filing 10

ORDER of Dismissal by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 1/22/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JULIAN ESCOBAR,
Petitioner,

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United States District Court
Northern District of California

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Case No. 18-cv-01818-EMC
ORDER OF DISMISSAL

v.

Docket No. 9
W. L. MUNIZ,
Respondent.

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I.

INTRODUCTION

Julian Escobar filed this pro se action seeking a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Respondent has filed an unopposed motion to dismiss the petition as untimely.

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For the reasons discussed below, the Court dismisses the action as untimely because the statute of

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limitations deadline expired almost three years before Mr. Escobar filed his habeas petition.

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II.

BACKGROUND

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Mr. Escobar was convicted in Santa Clara County Superior Court of first degree murder,

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four counts of attempted murder, and one count of active participation in a criminal street gang.

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The jury found true several sentence enhancement allegations. Mr. Escobar reports that he was

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sentenced to “ten consecutive life terms” in prison on September 23, 2011. Docket No. 1 at 1.

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(The California Court of Appeal opinion describes the sentence imposed as “an indeterminate term

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of life without the possibility of parole for the murder conviction, consecutive indeterminate terms

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of 25-years-to-life with the possibility of parole for the attempted murder convictions, and a

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determinate term of six years for the gang-participation conviction. See People v. Escobar, 2013

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WL 5372799 (Cal. Ct. App. Sept. 26, 2013).)

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Mr. Escobar appealed. The California Court of Appeal affirmed his conviction on

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September 26, 2013. See People v. Escobar, 2013 WL 5372799 (Cal. Ct. App. Sept. 26, 2013).

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The California Supreme Court denied his petition for review on December 18, 2013. He did not

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file any petitions for writ of habeas corpus in the state courts.

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Mr. Escobar then filed this action. His federal petition for writ of habeas corpus has a

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proof of service showing it was mailed to the Court on March 14, 2018. Applying the prison

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mailbox rule, the Court assumes for present purposes that Mr. Escobar gave his petition to prison

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officials to mail on the date he signed the proof of service, and deems the petition to have been

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filed as of March 14, 2018. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003)

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(mailbox rule provides that pro se prisoner's filing of a document is deemed to have occurred

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when he gives it to prison officials to mail to the court).
III.

United States District Court
Northern District of California

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DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a statute

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of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by

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prisoners challenging noncapital state convictions or sentences must be filed within one year of the

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latest of the date on which: (1) the judgment became final after the conclusion of direct review or

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the time has passed for seeking direct review; (2) an impediment to filing an application created by

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unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the

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constitutional right asserted was recognized by the Supreme Court, if the right was newly

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recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the

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factual predicate of the claim could have been discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1).

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The limitations period in this case began when the judgment became final upon “the

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expiration of the time for seeking [direct] review.” 28 U.S.C. § 2244(d)(1)(A). “[W]hen a

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petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's

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one-year limitations period begins to run on the date the ninety-day period defined by Supreme

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Court Rule 13 expires.” Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999); see also Cal. Rule of

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Court 5.32(b). The California Supreme Court denied Mr. Escobar’s petition for review on

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December 18, 2013. His conviction became final 90 days thereafter, on March 18, 2014, because
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he did not petition for writ of certiorari. See Greene v. Fisher, 565 U.S. 34, 39 (2011) (“Finality

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occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this

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Court has become time barred or has been disposed of”). The presumptive deadline for him to file

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his federal petition was one year later, on March 18, 2015.
The one-year limitations period can be tolled for the “time during which a properly filed

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

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judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Here, no statutory tolling is warranted

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because Mr. Escobar did not file any state habeas petitions or otherwise seek collateral review in

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state court.
The one-year limitations period can be equitably tolled because § 2244(d) is not

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United States District Court
Northern District of California

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jurisdictional. Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] litigant seeking equitable

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tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights

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diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 655 (quoting

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Pace, 544 U.S. at 418; see also Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006). Mr.

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Escobar has not offered any reason to equitably toll the limitations period.
Mr. Escobar’s federal petition for writ of habeas corpus filed on March 14, 2018, was filed

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almost three years after the expiration of the federal habeas statute of limitations period on

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March 18, 2013. His federal petition for writ of habeas corpus therefore must be dismissed as

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untimely.
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

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which “jurists of reason would find it debatable whether the petition states a valid claim of the

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denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IV.

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CONCLUSION

Respondent’s motion to dismiss is GRANTED. Docket No. 9. This action is dismissed

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because the petition for writ of habeas corpus was not filed before the expiration of the habeas

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statute of limitations period. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: January 22, 2019

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United States District Court
Northern District of California

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______________________________________
EDWARD M. CHEN
United States District Judge

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