Tran v. Martinez

Filing 8

ORDER OF DISMISSAL. Signed by Judge Trina L. Thompson on 3/25/2024. (rfm, COURT USER) (Filed on 3/26/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BA T. TRAN,
Petitioner,

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United States District Court
Northern District of California

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Case No. 23-cv-01677-TLT
ORDER OF DISMISSAL

v.
T. MARTINEZ,
Respondent.

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Petitioner, a state prisoner, filed this pro se petition for a writ of habeas corpus pursuant to

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28 U.S.C. § 2254 challenging his 2011 conviction of first-degree murder for which he was

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sentenced to 50 years to life. ECF 1 at 1-2. The court will dismiss the petition as untimely.

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The judgment was affirmed on appeal in 2013, and petitioner’s petition for review was

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denied by the California Supreme Court that same year. Id. at 3. Petitioner did not seek collateral

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review until a decade later when he filed a petition for writ of habeas corpus in the California

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Supreme Court arguing that his trial counsel provided constitutionally deficient assistance, his trial

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counsel failed to subpoena a critical witness, and his appellate counsel performed deficiently by

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failing to raise an issue on appeal. ECF 1 at 5. The California Supreme Court denied the petition

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in March 2023. Id. Petitioner filed the instant federal habeas petition in April 2023. ECF 1.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became

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law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of

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habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state

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convictions or sentences must be filed within one year of the latest of the date on which: (A) the

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judgment became final after the conclusion of direct review or the time passed for seeking direct

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review; (B) an impediment to filing an application created by unconstitutional state action was

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removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was

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recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and

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made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have

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been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during

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which a properly filed application for state post-conviction or other collateral review is pending is

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excluded from the one-year time limit. Id. § 2244(d)(2).

United States District Court
Northern District of California

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On September 28, 2023, the Court directed petitioner to show cause why his petition

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should not be dismissed as untimely. Petitioner argues that he was not made aware during any of

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his state court proceedings that appellate counsel’s failure to raise an ineffective assistance of trial

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counsel claim would be a procedural bar from raising that claim. ECF 6 at 1-2. He states that

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“California does not permit a convicted person alleging ineffective assistance of trial counsel to

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raise that claim on direct review” and it must be brought “in state collateral proceedings.” Id. at 1.

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Petitioner also cites Martinez v. Ryan, 566 U.S. 1 (2012) for the proposition that “ineffective

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assistance of postconviction counsel is ‘cause’ to forgive procedural default of an ineffective-

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assistance-of-trial-counsel claim.” ECF 7 at 1-2. Petitioner alleges he suffered from ineffective

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assistance of appellate counsel. Id. at 2. He states that he does not seek to introduce new evidence

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or develop a factual claim. Id. at 3.

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Petitioner has conflated untimeliness with procedural default, and his arguments do not

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meet any of AEDPA’s exceptions to the one-year time limit. Petitioner’s judgment became final

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in 2013 or 2014 when the 90-day period for seeking review in the United States Supreme Court

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expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The one-year state of

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limitations began to run at that time. Petitioner has not identified any impediment to filing that

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was removed, nor a new right made retroactive by the Supreme Court affecting his case, nor a

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factual predicate to his current claims that could not be discovered until later. Nor did petitioner

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file any other petitions for state post-conviction or collateral review before the year was up that

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could have tolled the statute of limitations. Martinez addresses procedural default, not timeliness.

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Martinez, 566 U.S. at 11. Petitioner should have raised his ineffective assistance of appellate

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counsel claims in a state habeas petition within the first year after his conviction became final, and
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then filed a federal habeas petition. Instead, petitioner waited ten years. The petition is therefore

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DISMISSED with prejudice as time barred. The Clerk shall enter judgment in favor of respondent

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and against petitioner and close the case.

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IT IS SO ORDERED.
Dated: March 25, 2024

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TRINA L. THOMPSON
United States District Judge

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United States District Court
Northern District of California

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