Perea v. Imperial County

Filing 21

ORDER denying 12 Motion to Dismiss Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Ruben B. Brooks on 6/13/11. (All non-registered users served via U.S. Mail Service)(lao)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 JAIME TAPIA PEREA, Civil No. Petitioner, 12 ORDER DENYING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS 13 14 10cv1565 RBB vs. 15 16 SHERIFF RAY LOERA, et al., 17 Respondents. 18 19 I. INTRODUCTION 20 Petitioner Jaime Tapia Perea has filed a Second Amended 21 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, 22 challenging his conviction for second degree burglary in Imperial 23 County Superior Court case number JCF22575. 24 ECF No. 9.1) 25 Amended Petition, arguing that it was filed beyond the statute of 26 / / / (Second Am. Pet. 1, Respondent has filed a Motion to Dismiss Second 27 1 28 Because Perea has attached additional pages to his Second Amended Petition, the Court will cite this document using the page numbers assigned by the Court’s electronic filing system. K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 1 10cv1565 1 limitations and is unexhausted. 2 (Mot. Dismiss 1-2, ECF No. 12; id. Attach. #1 Mem. P. & A. 2-9.) The Court has considered the Second Amended Petition, 3 4 Respondent’s Motion to Dismiss and Memorandum of Points and 5 Authorities in Support of the Motion to Dismiss, Petitioner’s 6 Opposition to the Motion, the lodgments submitted by Respondent, 7 and all other supporting documents submitted by the parties. 8 the reasons set forth below, the Motion to Dismiss is DENIED. 9 II. 10 For FACTUAL AND PROCEDURAL BACKGROUND Perea pleaded no contest to second degree burglary on October (See Lodgment No. 1, People v. Perea, No. JCF22575 11 20, 2008. 12 (Imperial Super. Ct. Oct. 20, 2008) (plea of guilty/no contest -- 13 felony).) 14 with the plea agreement to the middle term of two years in state 15 prison, the execution of which was suspended, and placed on three 16 years of formal probation. 17 2008).) 18 ninety days in the county jail and pay restitution in the amount of 19 $3,000.00. 20 December 17, 2008. 21 On November 19, 2008, he was sentenced in accordance (Id. (superior court minutes, Nov. 19, As conditions of probation, Perea was ordered to serve (Id. at 16.) A restitution hearing was set for (Id. at 17.) The court minutes from the December 17, 2008 hearing reflect 22 that a memorandum from the probation department was submitted to 23 the court; Perea asked for and received a continuance of the 24 restitution hearing until January 21, 2009. 25 minutes, Dec. 17, 2008).) 26 hearing was granted on January 21, 2009; the continued hearing was 27 set for March 5, 2009. 28 2009).) K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd (Id. (superior court Another continuance of the restitution (Id. (superior court minutes, Jan. 21, 2 10cv1565 On March 5, 2009, the superior court noted it had received a 1 2 “court order filed on 3/2/09, in defendant’s habeas writ proceeding 3 in Superior Court case EHC01114 . . . .” 4 minutes, Mar. 5, 2000).) 5 6 7 8 9 10 11 12 13 14 (Id. (superior court The order reads as follows: Petitioner initiated this action by a petition filed January 15, 2009. Petitioner seeks to withdraw a plea of no contest entered in this court on October 20, 2008 in case No. JCF 22575. Petitioner alleges perjury by the victim. Petitioner was sentenced pursuant to his plea on November 10, 2008. A restitution hearing is scheduled for March 11, 2009 at the jail division of this Court. The Court finds that petitioner has failed to make out a prima facie showing of entitlement to relief under habeas corpus law. For that reason, the petition is DENIED. The matter is referred to the trial court for a determination as to whether the petition may be treated as a motion pursuant to Penal Code section 1118. 15 (See Second Am. Pet. Attach. #1, Ex. C (order denying petition at 16 1-2), ECF No. 9.) 17 2009, and set a “Review of Defendant’s Plea” and “Restitution 18 Hearing.” 19 court minutes, Mar. 11, 2009).) 20 and the case was continued until April 15, 2009. The court calendared Perea’s case for March 11, (Lodgment No. 1, People v. Perea, No. JCF22575 (superior Counsel was appointed for Perea, (Id.) 21 At the April 15, 2009, hearing, Perea was appointed a new 22 attorney who was to determine whether there was any legal basis for 23 Perea to withdraw his plea. 24 2009).) 25 “Restitution (evidentiary) Hearing and Review of Defendant’s Plea.” 26 (Id.) 27 (Id. (superior court minutes, May 13, 2009).) 28 was unavailable for the May 27, 2009 hearing, the matter was reset (Id. (superior court minutes, Apr. 15, The matter was continued to May 13, 2009, for a On that date, it was continued again until May 27, 2009. K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 3 Because a witness 10cv1565 1 for June 10, 2009. (Id. (superior court minutes, May 27, 2009).) 2 At the hearing, Perea’s counsel told the court he had found no 3 grounds upon which to move to withdraw Perea’s plea. 4 (superior court minutes, June 10, 2009).) 5 defendant reached an agreement to reduce the amount of restitution; 6 the court accepted the stipulation and ordered restitution in the 7 amount of $300.00. 8 minutes to reflect the change. (Id.) (Id. The prosecutor and The court modified the November 19, 2008 (Id.) 9 Petitioner did not file a direct appeal, but six months later, 10 on December 11, 2009, he filed a petition for writ of habeas corpus 11 in the California Court of Appeal for the Fourth District, Division 12 One. 13 (Cal. Ct. App. filed Dec. 11, 2009) (petition).) 14 court denied the petition in a written, unpublished opinion filed 15 December 23, 2009. 16 op. (Cal. Ct. App. Dec. 23, 2009).) 17 petition for review of the appellate court’s decision with the 18 California Supreme Court. 19 as untimely. 20 (Lodgment No. 2, Perea v. County of Imperial, No. D056411 The appellate (Lodgment No. 3, In re Perea, No. D056411, slip Perea then attempted to file a That document was rejected by the court (Second Am. Pet. Attach. #1, Ex. 15, ECF No. 9.)) Perea filed a Petition for Writ of Habeas Corpus pursuant to (See Pet., ECF 21 28 U.S.C. § 2241 in this Court on July 23, 2010. 22 No. 1.) 23 28 U.S.C. § 2254 because Perea sought to challenge the validity of 24 his state court conviction. 25 see White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) 26 (holding that § 2254 is the proper jurisdictional basis for a 27 habeas petition brought by an individual “in custody pursuant to a 28 state court judgment”). The Court construed the Petition as one filed pursuant to K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd (Order Construing Pet. 1-2, ECF No. 4; Petitioner failed to name a proper 4 10cv1565 1 respondent. (See id. at 2-3.) The Court dismissed the case 2 without prejudice and with leave to amend, giving Perea until 3 November 15, 2010, to file a First Amended Petition. (Id. at 3.) On September 23, 2010, Petitioner filed a document which the 4 5 Court construed as a First Amended Petition. (See First. Am. Pet., 6 ECF No. 6.) 7 and with leave to amend because Perea had failed to use the proper 8 form, name the proper respondent, and allege exhaustion of his 9 claims. The Court again dismissed the case without prejudice (See Order Dismissing Case Without Prejudice 1-5, ECF No. 10 7.) Petitioner was given leave to file a Second Amended Petition. 11 (Id. at 4.) Perea submitted a Second Amended Petition, which was filed 12 13 nunc pro tunc to the date received, December 7, 2010. (Second Am. 14 Pet., ECF No. 9); see Houston v. Lack, 487 U.S. 266, 276 (1988) 15 (holding that a notice of appeal by a pro se prisoner is deemed 16 filed when the prisoner delivers it to prison authorities for 17 forwarding to the court); Anthony v. Cambra, 236 F.3d 568, 575 (9th 18 Cir. 2000) (applying the Houston mailbox rule to pro se prisoners’ 19 federal habeas petitions). 20 briefing schedule, notifying Respondents of Petitioner’s consent to 21 magistrate judge jurisdiction, and directing Respondents to 22 indicate whether they consented to magistrate judge jurisdiction 23 [ECF No. 10]. The Court issued an order setting a On February 4, 2011, Respondent filed a Motion to Dismiss and 24 25 Memorandum of Points and Authorities in Support of Motion. 26 Mot. Dismiss Attach. #1 Mem. P. & A. 1-9, ECF No. 12.) 27 submitted an opposition to the motion on February 23, 2011, which 28 / / / K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 5 (See Perea 10cv1565 1 he titled a “Traverse.” 2 15.) On April 4, 2011, the Court ordered Respondent to submit a 3 4 (See Notice Traverse Mot. Dismiss, ECF No. supplemental brief addressing two questions: (1) whether and why Petitioner’s conviction became final on March 2, 2009, when the state habeas corpus petition he filed in the Imperial County Superior Court was denied, or on June 10, 2009, when Petitioner’s courtappointed counsel determined there was no basis for the withdrawal of Petitioner’s plea and the superior court modified the original restitution award . . . . and (2) whether and why the effective filing date of Petitioner’s federal petition is July 23, 2010, the date of the first petition he filed in this Court, September 23, 2010, the date the First Amended Petition was filed, or December 6, 2010, the date the Second Amended Petition was filed. 5 6 7 8 9 10 11 12 (See Order Directing Resp’ts 3, Apr. 4, 2011, ECF No. 17.) 13 Respondent Loera consented to magistrate judge jurisdiction. 14 Notice, Consent & Reference 1, ECF No. 18.) 15 Supplemental Brief on April 14, 2011. 16 ECF No. 19.) 17 to Respondent’s Supplemental Brief [ECF No. 20]. 18 III. DISCUSSION (See The Respondent filed a (Resp’t’s Supplemental Br., Although not provided for, Perea filed an Opposition Respondent argues that Perea’s Petition is both untimely and 19 20 unexhausted. (Mot. Dismiss Attach. #1 Mem. P. & A. 2-9, ECF No. 21 12.) 22 Petition is timely under 28 U.S.C. § 2244(d)(1) and is exhausted. 23 Accordingly, the Motion to Dismiss is DENIED. For the reasons set forth below, the Court concludes the 24 A. Timeliness 25 Under 28 U.S.C. § 2244(d), a petitioner has one year from the 26 date his or her conviction is final to file a petition for writ of 27 habeas corpus in federal court pursuant to 28 U.S.C. § 2254. 28 28 U.S.C. § 2244(d) (West 2006). K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd See The statute of limitations, 6 10cv1565 1 however, is subject to both statutory and equitable tolling. 2 28 U.S.C. § 2244(d)(1); Holland v. Florida, __ U.S. __, 130 S.Ct. 3 2549, 2560 (2010). 4 1. See Effective Filing Date of the Petition in Federal Court 5 6 Respondent contends that the effective filing date for 7 purposes of AEDPA’s statute of limitations is December 6, 2010, 8 when Petitioner constructively filed his Second Amended Petition. 9 (See Mot. Dismiss Attach #1 Mem. P. & A. 5-6, ECF No. 12.) When a 10 district court has expressly or impliedly retained jurisdiction 11 over an action, however, the amended petition relates back to the 12 filing date of the original petition. 13 F.3d 1240, 1241 (9th Cir. 1999) (citing former Fed. R. Civ. P. 14 15(c)(2); Ramirez-Salgado v. Scribner, No. 08cv562 WQH (WMc), 2009 15 WL 211117, at *7 (S.D. Cal. Jan. 22, 2009). 16 See Henry v. Lungren, 164 Petitioner submitted his original federal habeas Petition on 17 July 22, 2010. (See Pet., ECF No. 1.) Although Perea used a 28 18 U.S.C. § 2241 form, the Petition challenged the validity of Perea’s 19 state court conviction and was construed as one filed pursuant to 20 28 U.S.C. § 2254. (See Order Construing Petition 1-2, Sept. 21, 21 2010, ECF No. 4.) The case was dismissed without prejudice and 22 with leave to file a First Amended Petition. (Id. at 2.) 23 Petitioner filed a First Amended Petition. 24 Discrepancy 1, ECF No. 5; First Am. Pet., ECF No. 5.) 25 dismissed without prejudice and with leave to amend; Perea was 26 given until December 6, 2010, to file a Second Amended Petition. 27 (See Order Dismissing Case 4, ECF No. 7.) 28 Petitioner mailed his Second Amended Petition to the Court, which K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 7 (See Notice Doc. It was also On December 6, 2010, 10cv1565 1 was filed nunc pro tunc to the date received, December 7, 2010. 2 (See Second Am. Pet, ECF No. 9.) Each time Perea’s habeas petition was dismissed, the Court 3 4 expressly retained jurisdiction. 5 raises in his Second Amended Petition were included in the original 6 Petition filed on July 22, 2010. 7 Second Am. Pet., ECF No. 9.) 8 Petition relates back to the Petition Perea filed on July 22, 2010, 9 and that is the operative filing date in federal court. 2. 10 In addition, the claims Perea (Compare Pet., ECF No. 1, with Accordingly, the Second Amended Commencement of the Statute of Limitations This Court must determine when AEDPA’s statute of limitations 11 12 began running. When a defendant does not appeal his conviction, 13 the statute of limitations begins to run sixty days after the time 14 for seeking review of the conviction has expired. 15 Marshall, 627 F.3d 768, 771 (9th Cir. 2010) (citing 28 U.S.C. 16 § 2244(d)(1)(A) and Cal. R. Ct. 8.308(a)). 17 Perea’s conviction became final on January 18, 2009, sixty days 18 after he was sentenced on November 19, 2008. 19 #1 Mem. P. & A. 3-4, ECF No. 12.) 20 trial court resolved the amount of restitution and the withdrawal 21 of his no-contest plea on June 10, 2009, so his conviction did not 22 become final until sixty days later. 23 2–5, ECF No. 15.) 24 limitations did not begin running until August 10, 2009.2 25 / / / Roberts v. Respondent argues that (Mot. Dismiss Attach. Perea contends that the state (Notice Traverse Mot. Dismiss Under Perea’s calculation, the statute of 26 27 28 2 Petitioner states his conviction became final on August 9, 2009, a Sunday. Therefore, under Perea’s calculation, the actual date the conviction became final is August 10, 2009, the following Monday. See Fed. R. Civ. Pro. 6(a)(1)(C). K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 8 10cv1565 1 In California, “an order granting probation is deemed to be a 2 final judgment for the limited purpose of taking an appeal 3 therefrom.” 4 Rptr. 82, 84 (1988). 5 affect when a conviction is final. 6 granted probation on March 5, 1986, and, as a condition thereof, 7 ordered to pay restitution “through the probation officer in such 8 amount and manner as the latter prescribed.” 9 Rptr. at 84. People v. Vournazos, 198 Cal. App. 948, 952, 244 Cal. The determination of restitution can also In Vournazos, the defendant was Id. at 952, 244 Cal. A supplemental hearing regarding restitution was set for October 24, 1986. 11 the amount of restitution and ordered Vournazos to pay the amount 12 through his probation officer. 13 judgment in effect was not a final judgment until the details of 14 the restitution were supplied by the order of October 24, 1986.” 15 Id. at 953, 244 Cal. Rptr. at 85. 16 would have been premature. 17 Id. At the hearing, the trial court fixed 10 The appellate court stated, “[T]he An appeal before that order Id. Perea’s case is similar to Vournazos. Although the judge set 18 restitution in the amount of $3,000.00 at the November 19, 2008 19 sentencing hearing, the matter was also set for a restitution 20 hearing on December 17, 2008. 21 No. JCF22575 (superior court minutes, Nov. 19, 2008).) 22 was continued. 23 restitution hearing was continued additional times, at least twice 24 because witnesses were unavailable. 25 May 13, 2009).) 26 (Lodgment No. 1, People v. Perea, The hearing (Id. (superior court minutes, Dec. 17, 2008).) The (Id. (superior court minutes, On June 10, 2009, the amount of restitution and whether to 27 permit Perea to withdraw his no-contest plea were resolved. 28 prosecutor and defendant counsel stipulated to restitution in the K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 9 The 10cv1565 1 amount of $300.00, reduced from $3,000.00. The court accepted the 2 stipulation and modified the restitution amount. 3 court minutes, June 10, 2009).) 4 would pay was at issue from November 19, 2008, until June 10, 2009. (Id. (superior The amount of restitution Perea On January 15, 2009, while awaiting his restitution hearing, 5 6 Perea filed a state habeas corpus petition seeking to withdraw the 7 no-contest plea he entered on October 20, 2008. 8 Pet. Attach. #1, Ex. C (order denying petition at 1-2), ECF No. 9.) 9 The superior court denied Perea’s petition and referred the matter 10 back to the trial judge to determine “whether the petition may be 11 treated as a motion pursuant to Penal Code section 1118 [sic].” 12 (Id. at 11.) 13 to withdraw a plea. 14 jury; entry of judgment of acquittal upon not guilty finding.” 15 Cal. Penal Code § 1118 (West 2004). Penal Code § 1118, however, does not apply to motions The section is titled, “Trial by court without It provides as follows: In a case tried by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right. 16 17 18 19 20 21 22 23 (See Second Am. Id. The citation to section 1118 appears to be in error. 24 First, 25 the section applies to court trials, not to pleas of no contest. 26 Perea filed his state habeas petition to withdraw a no-contest 27 plea. 28 Code section 1018, which applies to motions made by a defendant to It is clear that the state court intended to refer to Penal K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 10 10cv1565 1 withdraw a plea. 2 That statute reads, in pertinent part, as follows: 6 On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. 7 Cal. Penal Code § 1018 (West 2008); see also People v. Ramirez, 141 8 Cal. App. 4th 1501, 1505-06, 47 Cal. Rptr. 3d 272, 275 (2006) 9 (applying Penal Code section 1018 to pleas of no contest). 3 4 5 10 The trial judge understood his task was to determine whether (See Lodgment No. 11 Petitioner should be able to withdraw his plea. 12 1, People v. Perea, No. JCF22575 (superior court minutes, Mar. 5, 13 2009).) 14 petition], . . . this matter is calendared for Review of 15 Defendant’s Plea on March 11, 2009 in Dept. 5 at 8:30 a.m.” 16 Thus, this Court concludes that the Imperial Superior Court 17 intended to cite California Penal Code § 1018, and not § 1118, in 18 its order. 19 “Pursuant to the court order filed 3/2/09 [denying Perea’s (Id.) The trial judge’s reference to a review of the defendant’s 20 plea indicates that the superior court believed judgment had not 21 been entered or, at least, was suspended. 22 pursuant to Penal Code section 1018 may be made either before 23 judgment or within six months of an order granting probation if 24 entry of judgment is suspended. 25 California, “[p]robation is the ‘suspension of the imposition or 26 execution of a sentence and the order of conditional and revocable 27 release in the community under the supervision of a probation 28 officer.’” As noted, a motion Cal. Penal Code § 1018. In People v. Minor, 189 Cal. App. 4th 1, 9, 116 Cal. Rptr. K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 11 10cv1565 1 3d 228, 232 (2010) (quoting California Penal Code section 1203(a).) 2 “When the trial court suspends imposition of sentence, no judgment 3 is then pending against the probationer . . . .” 4 16 Cal. 4th 1081, 1087, 946 P. 2d 828, 832, 68 Cal. Rptr. 2d 870, 5 874 (1997). 6 of sentence, but he imposed a sentence of two years in prison and 7 suspended execution of that sentence. 8 v. Perea, 16-17, No. JCF22575 (superior court minutes, Nov. 19, 9 2008).) People v. Howard, The judge in Perea’s case did not suspend imposition (See Lodgment No. 1, People 10 Even if judgment in Perea’s case for purposes of AEDPA was 11 entered on November 19, 2008, the date Perea was sentenced, on June 12 10, 2009, the court modified the restitution amount and accepted 13 Perea’s counsel’s conclusion that there was no constitutional basis 14 to withdraw Perea’s no-contest plea. 15 June 10, 2009).) 16 to withdraw his no-contest plea was denied. 17 brief, Respondent overlooks the trial court’s review of Perea’s 18 plea and contends the modification of the restitution amount did 19 not change the date final judgment was entered because the court 20 simply modified the minutes of the November 19, 2008 sentencing. 21 (See Resp’t’s Supplemental Br. 4, ECF No. 19.) 22 June 10, 2009, Perea’s request to withdraw his no-contest plea, 23 originally filed as a petition for writ of habeas corpus, was 24 pending. 25 sentencing or the June 10, 2009 modification of restitution and 26 denial of Perea’s request to withdraw his plea. 27 December 11, 2009, he filed a petition for writ of habeas corpus 28 with the California Court of Appeal. (Id. (superior court minutes, Thus, June 10, 2009, is the date Perea’s request In his supplemental Nonetheless, until Petitioner did not appeal his November 19, 2008 K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 12 Instead, on (Lodgment No. 2, Perea v. 10cv1565 1 County of Imperial, No. D056411 (filed Dec. 11, 2009) (habeas 2 corpus petition).) 3 The cases cited by Respondent in support of his argument are 4 not compelling. They concern situations where a petitioner argued 5 the statute of limitations was restarted or tolled by various post- 6 judgment actions or motions. 7 529 (5th Cir. 2005) (holding a grant of probation is final when 8 pronounced, not when it is revoked and an appeal from that 9 revocation is dismissed); Lozano v. Frank, 424 F.3d 554, 555-56 See Caldwell v. Dretke, 429 F.3d 521, 10 (7th Cir. 2005) (concluding that a motion for modification of 11 sentence filed almost eight years after the state supreme court 12 denied Lozano’s petition for review did not “reset” AEDPA’s statute 13 of limitations and was not part of the direct review process); 14 Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (holding that a 15 motion to extend time to file state appeal does not “restart” 16 AEDPA’s statute of limitations); Gibson v. Klinger, 232 F.3d 799, 17 804 (10th Cir. 2000) (finding that no statutory tolling applies for 18 the gap period between when the time for appeal has expired and 19 when the state appellate court granted a motion to file a late 20 appeal because nothing was “pending” before a state court). 21 Considering all the evidence in the record, the Court 22 concludes that the June 10, 2009 order denying Perea’s motion to 23 withdraw his no-contest plea and reducing his restitution amount 24 was a final judgment for purposes of 28 U.S.C. § 2244(d)(1). 25 Perea’s conviction became final sixty days after June 10, 2009, or 26 on August 10, 2009.3 Absent any statutory or equitable tolling, 27 3 28 As previously noted, sixty days from June 10, 2009, is August 9, 2009, which is a Sunday. Thus, pursuant to Fed. R. Civ. Pro. 6(a)(1)(C), the sixty days ran out on August 10, 2009, the following Monday. K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 13 10cv1565 1 Perea had until August 10, 2010, to file his federal habeas 2 petition. 3 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil 4 Procedure 6(a), which states “[i]n computing any period of time 5 prescribed . . . by any applicable statute, the day of the act, 6 event, or default from which the designated period of time begins 7 to run shall not be included” to AEDPA). 8 in this Court on July 22, 2010. 9 Respondent’s Motion to Dismiss on the ground that the Petition is 10 28 U.S.C. § 2244(d); Patterson v. Stewart, 251 F.3d Perea filed his Petition Accordingly, it was timely. untimely is DENIED. 11 B. Exhaustion 12 Habeas petitioners who wish to challenge either their state 13 court conviction or the length of their confinement in state 14 prison, must first exhaust state judicial remedies. 15 § 2254(b), (c) (West 2006); Granberry v. Greer, 481 U.S. 129, 133- 16 34 (1987). 17 petitioner must “‘fairly present[]’ his federal claim to the 18 highest state court with jurisdiction to consider it, or . . . 19 demonstrate[] that no state remedy remains available.” 20 Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). 21 Moreover, to properly exhaust state court remedies a petitioner 22 must allege, in state court, how one or more federal rights have 23 been violated. 24 claim that an evidentiary ruling at a state court trial denied him 25 the due process of law guaranteed by the Fourteenth Amendment, he 26 must say so, not only in federal court, but in state court.” 27 Duncan v. Henry, 513 U.S. 364, 365-66 (1995). 28 / / / 28 U.S.C.A. Ordinarily, to satisfy the exhaustion requirement, a Johnson v. For example, “[i]f a habeas petitioner wishes to K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 14 See 10cv1565 Respondent argues the Petition must be dismissed because the 1 2 claims it contains are unexhausted. 3 P. & A. 12-14, ECF No. 12.) 4 to file a petition for review of the order denying the habeas 5 corpus petition he filed in the California appellate court. 6 Second Am. Pet. 15, ECF No. 9.) 7 rejected the petition as untimely. On January 22, 2010, Perea attempted (See The California Supreme Court (Id.) A claim is considered to be exhausted “if it is clear that the 8 9 (Mot. Dismiss Attach. #1 Mem. claims are now procedurally barred under [state] law.” Gray v. 10 Netherland, 518 U.S. 152, 162 (1996); Valerio v. Crawford, 306 F.3d 11 742, 770 (9th Cir. 2002) (stating that a claim may be considered 12 exhausted if it is obviously procedurally barred). 13 remedy is available to Petitioner because were he to return to 14 state court, his claims would be procedurally barred as untimely. 15 See In re Robbins, 18 Cal. 4th 770, 784, 959 P.2d 311, 320, 77 Cal. 16 Rptr. 153, 162 (1998); In re Clark, 5 Cal. 4th 750, 759, 855 P.2d 17 729, 734, 21 Cal. Rptr. 2d 509, 514 (1993); see also Walker v. 18 Martin, __ U.S. __, 131 S. Ct. 1120, 1131 (2011) (holding that 19 California’s timeliness rule is clearly established and 20 consistently applied). 21 Motion to Dismiss on the ground that Perea’s claims are 22 unexhausted. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd Here, no state Accordingly, the Court DENIES Respondent’s 15 10cv1565 1 2 IV. CONCLUSION For the foregoing reasons, the Court concludes Perea’s 3 petition is both timely and technically exhausted. 4 Motion to Dismiss is hereby DENIED. 5 DATED: June 13, 2011 6 7 Respondent’s _____________________________ Hon. Ruben B. Brooks UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd 16 10cv1565

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?