Escobar v. Muniz

Filing 8

ORDER by Judge Edward M. Chen Denying 7 Without Prejudice Respondent's Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 8/6/2018)

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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

v.
W. L. MUNIZ,
Respondent.

ORDER DENYING WITHOUT
PREJUDICE RESPONDENT’S MOTION
TO DISMISS
Docket No. 7

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Respondent has filed a motion to dismiss this action on the ground that the petition for writ

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of habeas corpus is barred by the habeas statute of limitations. Respondent’s argument as to why

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the petition is untimely consists of seven sentences. The motion does not mention the possibility

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of statutory tolling or equitable tolling, and does not argue that neither kind of tolling is available

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for Petitioner. The motion also is wrong in its calculation of the date on which the limitations

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period began. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (conviction of

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petitioner who did not file petition for writ of certiorari became final 90 days after the California

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Supreme Court denied review); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (same).

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In a habeas action challenging a state court conviction, the petitioner typically is

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unrepresented by counsel and incarcerated with limited access to legal materials. The Court

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assumes that such a petitioner typically begins preparing his opposition by looking at the motion

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to dismiss to decide what facts or law might support his opposition. For this reason, the Court

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expects a respondent in a pro se habeas action to at least identify the major issues that must be

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decided in a motion to dismiss and take a position on those issues. In a motion to dismiss for

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untimeliness, for example, the three main questions are: (1) when did the limitations period start?

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(2) how much, if any statutory tolling applies? and (3) how much, if any, equitable tolling applies?

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The Court has received many motions to dismiss filed by the California Attorney General’s office

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on behalf of respondents in habeas actions filed under 28 U.S.C. § 2254, and does not recall ever

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receiving one as short on details as the current one. Although a petitioner bears the burden of

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showing that statutory and/or equitable tolling applies to his case, see Banjo v. Ayers, 614 F.3d

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964, 967 (9th Cir. 2010), the statute of limitations for habeas petitions is an affirmative defense.

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Randle v. Crawford, 604 F.3d 1047, 1052 (9th Cir. 2010). If a respondent wants relief on the

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affirmative defense, the Court expects more detail than that provided in the motion to dismiss in

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this case. The motion does not need not be a lot longer than the current motion, but should at least

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provide a sentence or two about statutory tolling, see 28 U.S.C. § 2244(d)(2), and provide a
sentence or two about the requirements for equitable tolling, as well as argument as to whether

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United States District Court
Northern District of California

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those tolling principles appear to apply to this case. And, of course, the Court expects Respondent

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to provide the correct date for the start of the limitations period.

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The motion to dismiss filed by Respondent is simply too bare-bones for the Court to

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determine that the petition should be dismissed on the affirmative defense of a statute of

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limitations bar. Accordingly, Respondent’s motion to dismiss is DENIED. Docket No. 7. The

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denial of the motion is without prejudice to Respondent filing a new motion to dismiss that

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provides the information discussed in this order.

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The following briefing schedule is now set for a new motion to dismiss: Respondent must

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file and serve his motion to dismiss no later than August 27, 2018. Petitioner must file and serve

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his opposition no later than September 24, 2018. Respondent must file and serve his reply (if

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any) no later than October 8, 2018.

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IT IS SO ORDERED.

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Dated: August 6, 2018

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______________________________________
EDWARD M. CHEN
United States District Judge
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