Perea v. Imperial County
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JAIME TAPIA PEREA,
Civil No.
Petitioner,
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ORDER DENYING MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS
CORPUS
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10cv1565 RBB
vs.
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SHERIFF RAY LOERA, et al.,
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Respondents.
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I.
INTRODUCTION
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Petitioner Jaime Tapia Perea has filed a Second Amended
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Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
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challenging his conviction for second degree burglary in Imperial
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County Superior Court case number JCF22575.
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ECF No. 9.1)
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Amended Petition, arguing that it was filed beyond the statute of
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/ / /
(Second Am. Pet. 1,
Respondent has filed a Motion to Dismiss Second
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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.
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limitations and is unexhausted.
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(Mot. Dismiss 1-2, ECF No. 12; id.
Attach. #1 Mem. P. & A. 2-9.)
The Court has considered the Second Amended Petition,
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Respondent’s Motion to Dismiss and Memorandum of Points and
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Authorities in Support of the Motion to Dismiss, Petitioner’s
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Opposition to the Motion, the lodgments submitted by Respondent,
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and all other supporting documents submitted by the parties.
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the reasons set forth below, the Motion to Dismiss is DENIED.
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II.
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For
FACTUAL AND PROCEDURAL BACKGROUND
Perea pleaded no contest to second degree burglary on October
(See Lodgment No. 1, People v. Perea, No. JCF22575
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20, 2008.
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(Imperial Super. Ct. Oct. 20, 2008) (plea of guilty/no contest --
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felony).)
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with the plea agreement to the middle term of two years in state
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prison, the execution of which was suspended, and placed on three
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years of formal probation.
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2008).)
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ninety days in the county jail and pay restitution in the amount of
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$3,000.00.
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December 17, 2008.
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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
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that a memorandum from the probation department was submitted to
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the court; Perea asked for and received a continuance of the
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restitution hearing until January 21, 2009.
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minutes, Dec. 17, 2008).)
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hearing was granted on January 21, 2009; the continued hearing was
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set for March 5, 2009.
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2009).)
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(Id. (superior court
Another continuance of the restitution
(Id. (superior court minutes, Jan. 21,
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On March 5, 2009, the superior court noted it had received a
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“court order filed on 3/2/09, in defendant’s habeas writ proceeding
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in Superior Court case EHC01114 . . . .”
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minutes, Mar. 5, 2000).)
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(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.
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(See Second Am. Pet. Attach. #1, Ex. C (order denying petition at
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1-2), ECF No. 9.)
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2009, and set a “Review of Defendant’s Plea” and “Restitution
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Hearing.”
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court minutes, Mar. 11, 2009).)
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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.)
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At the April 15, 2009, hearing, Perea was appointed a new
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attorney who was to determine whether there was any legal basis for
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Perea to withdraw his plea.
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2009).)
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“Restitution (evidentiary) Hearing and Review of Defendant’s Plea.”
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(Id.)
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(Id. (superior court minutes, May 13, 2009).)
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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.
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Because a witness
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for June 10, 2009.
(Id. (superior court minutes, May 27, 2009).)
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At the hearing, Perea’s counsel told the court he had found no
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grounds upon which to move to withdraw Perea’s plea.
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(superior court minutes, June 10, 2009).)
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defendant reached an agreement to reduce the amount of restitution;
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the court accepted the stipulation and ordered restitution in the
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amount of $300.00.
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minutes to reflect the change.
(Id.)
(Id.
The prosecutor and
The court modified the November 19, 2008
(Id.)
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Petitioner did not file a direct appeal, but six months later,
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on December 11, 2009, he filed a petition for writ of habeas corpus
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in the California Court of Appeal for the Fourth District, Division
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One.
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(Cal. Ct. App. filed Dec. 11, 2009) (petition).)
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court denied the petition in a written, unpublished opinion filed
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December 23, 2009.
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op. (Cal. Ct. App. Dec. 23, 2009).)
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petition for review of the appellate court’s decision with the
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California Supreme Court.
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as untimely.
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(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
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28 U.S.C. § 2241 in this Court on July 23, 2010.
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No. 1.)
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28 U.S.C. § 2254 because Perea sought to challenge the validity of
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his state court conviction.
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see White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004)
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(holding that § 2254 is the proper jurisdictional basis for a
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habeas petition brought by an individual “in custody pursuant to a
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state court judgment”).
The Court construed the Petition as one filed pursuant to
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(Order Construing Pet. 1-2, ECF No. 4;
Petitioner failed to name a proper
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respondent.
(See id. at 2-3.)
The Court dismissed the case
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without prejudice and with leave to amend, giving Perea until
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November 15, 2010, to file a First Amended Petition.
(Id. at 3.)
On September 23, 2010, Petitioner filed a document which the
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Court construed as a First Amended Petition.
(See First. Am. Pet.,
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ECF No. 6.)
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and with leave to amend because Perea had failed to use the proper
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form, name the proper respondent, and allege exhaustion of his
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claims.
The Court again dismissed the case without prejudice
(See Order Dismissing Case Without Prejudice 1-5, ECF No.
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7.)
Petitioner was given leave to file a Second Amended Petition.
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(Id. at 4.)
Perea submitted a Second Amended Petition, which was filed
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nunc pro tunc to the date received, December 7, 2010.
(Second Am.
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Pet., ECF No. 9); see Houston v. Lack, 487 U.S. 266, 276 (1988)
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(holding that a notice of appeal by a pro se prisoner is deemed
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filed when the prisoner delivers it to prison authorities for
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forwarding to the court); Anthony v. Cambra, 236 F.3d 568, 575 (9th
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Cir. 2000) (applying the Houston mailbox rule to pro se prisoners’
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federal habeas petitions).
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briefing schedule, notifying Respondents of Petitioner’s consent to
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magistrate judge jurisdiction, and directing Respondents to
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indicate whether they consented to magistrate judge jurisdiction
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[ECF No. 10].
The Court issued an order setting a
On February 4, 2011, Respondent filed a Motion to Dismiss and
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Memorandum of Points and Authorities in Support of Motion.
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Mot. Dismiss Attach. #1 Mem. P. & A. 1-9, ECF No. 12.)
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submitted an opposition to the motion on February 23, 2011, which
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/ / /
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(See
Perea
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he titled a “Traverse.”
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15.)
On April 4, 2011, the Court ordered Respondent to submit a
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(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.
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(See Order Directing Resp’ts 3, Apr. 4, 2011, ECF No. 17.)
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Respondent Loera consented to magistrate judge jurisdiction.
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Notice, Consent & Reference 1, ECF No. 18.)
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Supplemental Brief on April 14, 2011.
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ECF No. 19.)
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to Respondent’s Supplemental Brief [ECF No. 20].
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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
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unexhausted.
(Mot. Dismiss Attach. #1 Mem. P. & A. 2-9, ECF No.
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12.)
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Petition is timely under 28 U.S.C. § 2244(d)(1) and is exhausted.
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Accordingly, the Motion to Dismiss is DENIED.
For the reasons set forth below, the Court concludes the
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A.
Timeliness
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Under 28 U.S.C. § 2244(d), a petitioner has one year from the
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date his or her conviction is final to file a petition for writ of
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habeas corpus in federal court pursuant to 28 U.S.C. § 2254.
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28 U.S.C. § 2244(d) (West 2006).
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See
The statute of limitations,
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however, is subject to both statutory and equitable tolling.
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28 U.S.C. § 2244(d)(1); Holland v. Florida, __ U.S. __, 130 S.Ct.
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2549, 2560 (2010).
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1.
See
Effective Filing Date of the Petition in Federal
Court
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Respondent contends that the effective filing date for
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purposes of AEDPA’s statute of limitations is December 6, 2010,
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when Petitioner constructively filed his Second Amended Petition.
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(See Mot. Dismiss Attach #1 Mem. P. & A. 5-6, ECF No. 12.)
When a
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district court has expressly or impliedly retained jurisdiction
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over an action, however, the amended petition relates back to the
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filing date of the original petition.
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F.3d 1240, 1241 (9th Cir. 1999) (citing former Fed. R. Civ. P.
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15(c)(2); Ramirez-Salgado v. Scribner, No. 08cv562 WQH (WMc), 2009
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WL 211117, at *7 (S.D. Cal. Jan. 22, 2009).
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See Henry v. Lungren, 164
Petitioner submitted his original federal habeas Petition on
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July 22, 2010.
(See Pet., ECF No. 1.)
Although Perea used a 28
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U.S.C. § 2241 form, the Petition challenged the validity of Perea’s
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state court conviction and was construed as one filed pursuant to
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28 U.S.C. § 2254.
(See Order Construing Petition 1-2, Sept. 21,
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2010, ECF No. 4.)
The case was dismissed without prejudice and
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with leave to file a First Amended Petition.
(Id. at 2.)
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Petitioner filed a First Amended Petition.
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Discrepancy 1, ECF No. 5; First Am. Pet., ECF No. 5.)
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dismissed without prejudice and with leave to amend; Perea was
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given until December 6, 2010, to file a Second Amended Petition.
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(See Order Dismissing Case 4, ECF No. 7.)
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Petitioner mailed his Second Amended Petition to the Court, which
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(See Notice Doc.
It was also
On December 6, 2010,
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was filed nunc pro tunc to the date received, December 7, 2010.
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(See Second Am. Pet, ECF No. 9.)
Each time Perea’s habeas petition was dismissed, the Court
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expressly retained jurisdiction.
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raises in his Second Amended Petition were included in the original
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Petition filed on July 22, 2010.
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Second Am. Pet., ECF No. 9.)
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Petition relates back to the Petition Perea filed on July 22, 2010,
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and that is the operative filing date in federal court.
2.
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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
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began running.
When a defendant does not appeal his conviction,
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the statute of limitations begins to run sixty days after the time
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for seeking review of the conviction has expired.
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Marshall, 627 F.3d 768, 771 (9th Cir. 2010) (citing 28 U.S.C.
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§ 2244(d)(1)(A) and Cal. R. Ct. 8.308(a)).
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Perea’s conviction became final on January 18, 2009, sixty days
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after he was sentenced on November 19, 2008.
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#1 Mem. P. & A. 3-4, ECF No. 12.)
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trial court resolved the amount of restitution and the withdrawal
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of his no-contest plea on June 10, 2009, so his conviction did not
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become final until sixty days later.
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2–5, ECF No. 15.)
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limitations did not begin running until August 10, 2009.2
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/ / /
Roberts v.
Respondent argues that
(Mot. Dismiss Attach.
Perea contends that the state
(Notice Traverse Mot. Dismiss
Under Perea’s calculation, the statute of
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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).
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In California, “an order granting probation is deemed to be a
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final judgment for the limited purpose of taking an appeal
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therefrom.”
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Rptr. 82, 84 (1988).
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affect when a conviction is final.
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granted probation on March 5, 1986, and, as a condition thereof,
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ordered to pay restitution “through the probation officer in such
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amount and manner as the latter prescribed.”
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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.
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the amount of restitution and ordered Vournazos to pay the amount
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through his probation officer.
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judgment in effect was not a final judgment until the details of
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the restitution were supplied by the order of October 24, 1986.”
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Id. at 953, 244 Cal. Rptr. at 85.
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would have been premature.
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Id.
At the hearing, the trial court fixed
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The appellate court stated, “[T]he
An appeal before that order
Id.
Perea’s case is similar to Vournazos.
Although the judge set
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restitution in the amount of $3,000.00 at the November 19, 2008
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sentencing hearing, the matter was also set for a restitution
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hearing on December 17, 2008.
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No. JCF22575 (superior court minutes, Nov. 19, 2008).)
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was continued.
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restitution hearing was continued additional times, at least twice
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because witnesses were unavailable.
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May 13, 2009).)
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(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
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permit Perea to withdraw his no-contest plea were resolved.
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prosecutor and defendant counsel stipulated to restitution in the
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The
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amount of $300.00, reduced from $3,000.00.
The court accepted the
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stipulation and modified the restitution amount.
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court minutes, June 10, 2009).)
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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,
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Perea filed a state habeas corpus petition seeking to withdraw the
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no-contest plea he entered on October 20, 2008.
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Pet. Attach. #1, Ex. C (order denying petition at 1-2), ECF No. 9.)
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The superior court denied Perea’s petition and referred the matter
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back to the trial judge to determine “whether the petition may be
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treated as a motion pursuant to Penal Code section 1118 [sic].”
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(Id. at 11.)
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to withdraw a plea.
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jury; entry of judgment of acquittal upon not guilty finding.”
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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.
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(See Second Am.
Id.
The citation to section 1118 appears to be in error.
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First,
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the section applies to court trials, not to pleas of no contest.
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Perea filed his state habeas petition to withdraw a no-contest
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plea.
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Code section 1018, which applies to motions made by a defendant to
It is clear that the state court intended to refer to Penal
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withdraw a plea.
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That statute reads, in pertinent part, as
follows:
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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.
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Cal. Penal Code § 1018 (West 2008); see also People v. Ramirez, 141
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Cal. App. 4th 1501, 1505-06, 47 Cal. Rptr. 3d 272, 275 (2006)
9
(applying Penal Code section 1018 to pleas of no contest).
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The trial judge understood his task was to determine whether
(See Lodgment No.
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Petitioner should be able to withdraw his plea.
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1, People v. Perea, No. JCF22575 (superior court minutes, Mar. 5,
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2009).)
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petition], . . . this matter is calendared for Review of
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Defendant’s Plea on March 11, 2009 in Dept. 5 at 8:30 a.m.”
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Thus, this Court concludes that the Imperial Superior Court
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intended to cite California Penal Code § 1018, and not § 1118, in
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its order.
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“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
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plea indicates that the superior court believed judgment had not
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been entered or, at least, was suspended.
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pursuant to Penal Code section 1018 may be made either before
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judgment or within six months of an order granting probation if
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entry of judgment is suspended.
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California, “[p]robation is the ‘suspension of the imposition or
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execution of a sentence and the order of conditional and revocable
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release in the community under the supervision of a probation
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officer.’”
As noted, a motion
Cal. Penal Code § 1018.
In
People v. Minor, 189 Cal. App. 4th 1, 9, 116 Cal. Rptr.
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3d 228, 232 (2010) (quoting California Penal Code section 1203(a).)
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“When the trial court suspends imposition of sentence, no judgment
3
is then pending against the probationer . . . .”
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16 Cal. 4th 1081, 1087, 946 P. 2d 828, 832, 68 Cal. Rptr. 2d 870,
5
874 (1997).
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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
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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
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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).)
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to withdraw his no-contest plea was denied.
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brief, Respondent overlooks the trial court’s review of Perea’s
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plea and contends the modification of the restitution amount did
19
not change the date final judgment was entered because the court
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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
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pending.
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sentencing or the June 10, 2009 modification of restitution and
26
denial of Perea’s request to withdraw his plea.
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December 11, 2009, he filed a petition for writ of habeas corpus
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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
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Instead, on
(Lodgment No. 2, Perea v.
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County of Imperial, No. D056411 (filed Dec. 11, 2009) (habeas
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corpus petition).)
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The cases cited by Respondent in support of his argument are
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not compelling.
They concern situations where a petitioner argued
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the statute of limitations was restarted or tolled by various post-
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judgment actions or motions.
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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,
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(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,
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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
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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
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10cv1565
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Perea had until August 10, 2010, to file his federal habeas
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petition.
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1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil
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Procedure 6(a), which states “[i]n computing any period of time
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prescribed . . . by any applicable statute, the day of the act,
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event, or default from which the designated period of time begins
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to run shall not be included” to AEDPA).
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in this Court on July 22, 2010.
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Respondent’s Motion to Dismiss on the ground that the Petition is
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28 U.S.C. § 2244(d); Patterson v. Stewart, 251 F.3d
Perea filed his Petition
Accordingly, it was timely.
untimely is DENIED.
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B.
Exhaustion
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Habeas petitioners who wish to challenge either their state
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court conviction or the length of their confinement in state
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prison, must first exhaust state judicial remedies.
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§ 2254(b), (c) (West 2006); Granberry v. Greer, 481 U.S. 129, 133-
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34 (1987).
17
petitioner must “‘fairly present[]’ his federal claim to the
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highest state court with jurisdiction to consider it, or . . .
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demonstrate[] that no state remedy remains available.”
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Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
21
Moreover, to properly exhaust state court remedies a petitioner
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must allege, in state court, how one or more federal rights have
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been violated.
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claim that an evidentiary ruling at a state court trial denied him
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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.
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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
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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.
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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.
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Martin, __ U.S. __, 131 S. Ct. 1120, 1131 (2011) (holding that
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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.
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/ / /
24
/ / /
25
/ / /
26
/ / /
27
/ / /
28
/ / /
K:\COMMON\EVERYONE\_EFILE-PROSE\RBB\10cv1565-OrderDenMoToDism.wpd
Here, no state
Accordingly, the Court DENIES Respondent’s
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IV.
CONCLUSION
For the foregoing reasons, the Court concludes Perea’s
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petition is both timely and technically exhausted.
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Motion to Dismiss is hereby DENIED.
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DATED: June 13, 2011
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Respondent’s
_____________________________
Hon. Ruben B. Brooks
UNITED STATES MAGISTRATE JUDGE
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