Vera v. Adams et al

Filing 64

ORDER on 62 Motion to Vacate. Having read and made its best attempt to consider Vera's opposition to the R&R, the Court's ruling stands. The R&R is adopted, and Respondent's motion to dismiss is granted. The Court will continue to deny Vera a certificate of appealability.This case is closed, and the Court will not accept any further pleadings from Vera. Signed by Judge Larry Alan Burns on 11/27/13. (All non-registered users served via U.S. Mail Service)(kaj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

GUILLERMO VERA,

12

CASE NO. 10-CV-1940-LAB-BLM
Petitioner,

ORDER ON MOTION TO VACATE

vs.
13
14

DARRIL ADAMS,
Respondent.

15
16
17
18
19

On April 29 of this year, Magistrate Judge Major issued an R&R in this case
recommending that the Court grant Respondent’s motion to dismiss because, among other
reasons, Vera’s habeas petition was untimely. The Court adopted that R&R on September
3.

20
21
22
23
24
25
26
27
28

Between April 29 and September 3, Vera filed multiple requests for more time to file
an opposition to the R&R. The Court granted one of those requests, on June 13, 2013, but
didn’t rule on subsequent requests. In its June 13 order, however, the Court said it
“presumes Vera is working on his response even while he awaits the Court’s ruling on his
motion for more time,” which Vera should have understood as applying to subsequent
requests which the Court didn’t immediately rule on. In any event, when the Court adopted
the R&R on September 13 it noted that Vera had still failed to file an opposition:
//
//
-1-

1

It appears, however, that Vera still intends to file an opposition
to the R&R because twice now he has requested even more
time. On July 9, the Court received a request dated July 2 in
which Vera acknowledged his earlier extension but said his lack
of access to the law library and the confiscation of his legal
documents, including his own habeas petition, prevented him
from filing an opposition. (Doc. No. 52.) He asked for an
additional 40 days. Then, on July 22, the Court received
essentially the pleading, but dated June 30. (Doc. No. 56.) The
Court hasn’t ruled on these requests because as far as it is
concerned Vera is on notice that he was granted one extension
and that the Court can rule on the R&R at any time.

2
3
4
5
6
7

10

In any event, both of Vera’s subsequent requests for more time
to oppose the R&R are DENIED. The Court granted Vera one
extension, pushed his opposition deadline back, and still, nearly
four full months after Judge Major’s R&R was filed, Vera has not
opposed it. The Court is ready to rule on the R&R and will not
wait any longer to hear from Vera.

11

Unfortunately for Vera, and the Court, at the very time that the Court was considering and

12

adopting the R&R Vera did file an opposition, albeit a very late one. His opposition was

13

received by the Clerk’s office on August 30 and forwarded to chambers, but it arrived after

14

the Court had adopted the R&R and was rejected for being late. More recently, Vera has

15

filed multiple motions to vacate the Court’s order adopting the R&R, on the ground that he

16

submitted an opposition to the R&R that wasn’t considered.

8
9

17

The Court has now read and considered Vera’s opposition to the R&R. While legible,

18

the seven-page opposition is hard to follow, in places unintelligible, and barely responsive

19

to the actual substance of the R&R. Vera seems to want to argue that he is entitled to

20

equitable tolling because he was deliberately moved around the state court system and

21

denied access to legal materials and a law library. There are at least two problems with that

22

argument. First, it’s a new argument. As the R&R observed, Vera’s objection to the motion

23

to dismiss didn’t identify any reasons that he is entitled to equitable tolling. Second, the time

24

gaps in this case are huge. Vera’s administrative appeal was screened out on June 8, 2005,

25

giving him until June 8, 2006 to file a federal habeas petition, and he took until July 9, 2012

26

to file one. Even with the intervening state petitions and corresponding statutory tolling, this

27

length of time simply can’t be justified.

28

//
-2-

1

Having read and made its best attempt to consider Vera’s opposition to the R&R, the

2

Court’s ruling stands. The R&R is ADOPTED, and Respondent’s motion to dismiss is

3

GRANTED. The Court will continue to deny Vera a certificate of appealability. Lambright

4

v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). Vera may of course ask the Ninth Circuit

5

for a certificate of appealability, however, and if he is granted one he may appeal the Court’s

6

ruling. But this case is CLOSED, and the Court will not accept any further pleadings from

7

Vera.

8
9
10

IT IS SO ORDERED.
DATED: November 27, 2013

11
12

HONORABLE LARRY ALAN BURNS
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-