Rojero v. Noll

Filing 28

ORDER ADOPTING 19 REPORT AND RECOMMENDATIONS and Dismissing First Amended Petition: Petitioners objections are overruled, the Report and Recommendation is ADOPTED as modified herein, and the amended petition is DISMISSED. Certificate of Appealability denied. Signed by Judge M. James Lorenz on 8/12/2010.(All non-registered users served via U.S. Mail Service)(mjj)

1 2 3 4 5 6 7 8 9 10 11 JULIO MATA ROJERO, 12 13 v. 14 COLEEN NOLL, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 09cv2047-L(NLS) ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING FIRST AMENDED PETITION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Julio Mata Rojero, proceeding in pro se, filed a petition for writ of habeas

18 corpus pursuant to 28 U.S.C. Section 2254. The case was referred to United States Magistrate 19 Judge Nita L. Stormes for a report and recommendation pursuant to 28 U.S.C. Section 20 636(b)(1)(B) and Civil Local Rule 72.3. Petitioner subsequently filed an amended petition 21 together with a motion to stay this case and hold it in abeyance while Petitioner exhausts his 22 unexhausted claims in state court. Respondent opposed the motion. Judge Stormes issued a 23 report and recommended denying Petitioner's motion and dismiss the amended petition because 24 Petitioner did not show good cause for failure to previously exhaust his claims and because even 25 if the claims were exhausted, they were time barred. 26 In reviewing a magistrate judge's report and recommendation, the district court "shall

27 make a de novo determination of those portions of the report . . . to which objection is made," 28 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made
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1 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 2 review the magistrate judge's findings and recommendations de novo if objection is made, but 3 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) 4 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 5 2003) (applying Reyna-Tapia to habeas review). Petitioner filed objections to the Report and 6 Recommendation. 7 "Habeas petitioners have long been required to adjudicate their claims in state court ­ that

8 is, `exhaust' them ­ before seeking relief in federal court." King v. Ryan, 564 F.3d 1133, 1138 9 (9th Cir. 2009). A federal court may not grant habeas relief "unless it appears that . . . the 10 applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. 11 § 2254(b)(1)(A). The amended petition contains six grounds for relief; however, none of them 12 had been presented to the California Supreme Court. To satisfy the exhaustion requirement, a 13 petitioner must fairly present his federal claims to the highest court with jurisdiction to consider 14 it, or demonstrate that no state remedy remains available. Johnson v. Zenon, 88 F.3d 828, 829 15 (9th Cir. 1996). Petitioner has not presented any of his claims to the highest court, and he does 16 not maintain, either in his motion or in his objections, that no state remedy remains available to 17 him. 18 "District courts have the discretion to hold a mixed petition in abeyance pending

19 exhaustion of the unexhausted claims." Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir, 20 2006). However, this rule does not extend "to the situation where the original habeas petition 21 contained only unexhausted claims." Id. "Once a district court determines that a habeas petition 22 contains only unexhausted claims, it . . . may simply dismiss the habeas petition for failure to 23 exhaust." Id. Because Petitioner's amended petition contains only unexhausted claims, his 24 motion to stay and abey is DENIED and the amended petition is DISMISSED for failure to 25 exhaust. 26 In the alternative, assuming for the sake of argument that Plaintiff had exhausted all of his

27 claims, the court would nevertheless have to dismiss his amended petition as untimely. "In 28 furtherance of Congress's desire to accelerate the federal habeas process, AEDPA imposed a
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1 one-year statute of limitations on the filing of a federal habeas corpus petition by a state 2 prisoner." Nino v. Galaza, 183 F.3d 1003, 1004-05 (9th Cir. 1999) (internal quotation marks 3 and citation omitted); 28 U.S.C. § 2244(d)(1). For prisoners like Petitioner, whose convictions 4 became final before AEDPA's enactment, the statute expired on April 24, 1997. Patterson v. 5 Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). 6 Petitioner's sentence became final in 1994. He filed his first state habeas petition in

7 California Superior Court on January 5, 1995. It was denied on March 23, 1995. Petitioner did 8 not pursue habeas review again for six years, until April 29, 2001, when he filed his second state 9 habeas petition in California Superior Court. It was denied on July 9, 2001. Petitioner then let 10 more than six years elapse before he again sought habeas review on January 13, 2008, when he 11 filed a habeas petition in California Court of Appeal. It was denied as untimely on April 30, 12 2008. On March 10, 2009 he filed a habeas petition in California Supreme Court, alleging only 13 an ineffective assistance claim. This petition was denied as untimely on August 12, 2009. 14 Petitioner's initial petition in this court was filed on September 11, 2009, years after the statute 15 of limitations had expired. Although the Report and Recommendation addresses the statute of 16 limitations issues, in his objections Plaintiff does not argue that his federal petition is timely 17 under any available tolling doctrines. Accordingly, the amended petition is DISMISSED on the 18 alternative ground that it is untimely. 19 Based on the foregoing, Petitioner's objections are overruled, the Report and

20 Recommendation is ADOPTED as modified herein, and the amended petition is DISMISSED. 21 Based on the reasons stated herein, certificate of appealability is DENIED. 22 IT IS SO ORDERED.

23 DATED: August 12, 2010 24 25 26 COPY TO: M. James Lorenz United States District Court Judge

HON. NITA L. STORMES 27 UNITED STATES MAGISTRATE JUDGE 28 ALL PARTIES/COUNSEL
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