Ray v. Cate

Filing 84

ORDER by Judge Yvonne Gonzalez Rogers denying 34 Motion to Strike ; denying 32 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 11-1604 YGR (PR)

EDWARD VINCENT RAY, III,
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ORDER DENYING
MOTION TO DISMISS;

Petitioner,
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v.
ORDER SETTING
BRIEFING SCHEDULE

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MATTHEW CATE,
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Respondent.
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INTRODUCTION

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This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. For the reasons discussed herein, respondent’s motion to dismiss the petition

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(Docket No. 32) is DENIED. Respondent is directed to file an answer addressing the

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merits of the claims raised in the operative petition on or before March 20, 2013.

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DISCUSSION

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Respondent moves to (I) dismiss the petition on grounds that it is untimely, or, in

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the alternative, (II) dismiss two claims as procedurally defaulted.

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I.

Timeliness of the Petition

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Federal habeas petitions must be filed within one year of the latest of the date on

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which: (1) the judgment became final after the conclusion of direct review or the time passed

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for seeking direct review; (2) an impediment to filing an application created by

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No. C 11-1604 YGR (PR)
ORDER DENYING MOTION TO DISMISS

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

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the 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)

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

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diligence. See 28 U.S.C. § 2244(d)(1). “[W]hen a petitioner fails to seek a writ of certiorari

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from the United States Supreme Court, the AEDPA’s one-year limitations period begins to

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run on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v.

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Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

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Respondent contends that the instant federal habeas petition is untimely. The record

United States District Court
For the Northern District of California

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does not support this contention. On March 10, 2010, the state supreme court denied a

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petition for direct review of the robbery convictions petitioner received in 2007. Petitioner,

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then, had until June 8, 2011, that is, one year and ninety days, to file a timely federal habeas

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petition. The instant petition was filed on March 16, 2011,1 well within the filing deadline.

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Accordingly, respondent’s motion to dismiss is DENIED.

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Respondent based his contentions on the belief that the state supreme court never

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filed, and therefore never ruled on, a direct review petition petitioner attempted to file on

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February 2, 2010. However, the record shows that the state supreme court denied

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petitioner’s petition for review on March 10, 2010 (Opp. to Mot. to Dismiss, Ex. 5) in an

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action bearing the same case number with which petitioner’s “attempted” petition was

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stamped.

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Respondent also contends that this petition for direct review was untimely. It may

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have been. On November 23, 2009, the state appellate court affirmed on direct appeal

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petitioner’ s robbery convictions. Petitioner had 40 days, that is, until January 2, 2010, to file

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a timely petition for direct review in the state supreme court. See Cal. Rule of Court, 8.500.

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Petitioner is entitled to this filing date, rather than the April 1, 2011 date listed in the
docket. The Court assumes that he put the petition in the prison mail the day he signed it
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(March 16, 2011) and will use that as the filing date under the prisoner mailbox rule. See
generally Houston v. Lack, 487 U.S. 266, 276 (1988).
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No. C 11-1604 YGR (PR)
ORDER DENYING MOTION TO DISMISS

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Petitioner appears to have filed a late petition for direct review on February 2, 2010. The

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state supreme court, however, did rule on the petition, and there was no mention of the

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petition’s untimeliness. On such a record, this Court must assume that the state supreme

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court waived any timeliness concerns, and ruled on the merits of the claims. On such a

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record, the instant federal habeas petition was timely filed, and respondent’s motion is

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DENIED.

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II.

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United States District Court
For the Northern District of California

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Procedural Default
Respondent’s contentions regarding procedural default are better raised in an answer,

which will also contain a discussion of the claims’ merits. Accordingly, respondent’s motion
to dismiss some claims as procedurally defaulted is DENIED.
CONCLUSION

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For the reasons stated above, respondent’s motion to dismiss the petition (Docket No.

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32) is DENIED. Petitioner’s motion to strike the dismissal motion (Docket No. 34) is

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DENIED.

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On or before March 20, 2013, respondent shall file an answer addressing the

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merits of the claims raised in the operative petition. If petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the Court and serving it on respondent’s

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counsel within thirty (30) days of the date the answer is filed. Upon a showing of good

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cause, requests by either party for a reasonable extension of time will be granted provided

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they are filed on or before the deadline they seek to extend.

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The Clerk shall terminate Docket Nos. 32 and 34.
IT IS SO ORDERED.
DATED:

January 10, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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No. C 11-1604 YGR (PR)
ORDER DENYING MOTION TO DISMISS