Jesus Beltran Olivar v. Frank X Chavez, No. 2:2013cv04112 - Document 7 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P Rosenbluth. (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS BELTRAN OLIVAR, 12 13 14 15 16 17 18 Petitioner, vs. FRANK X. CHAVEZ, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 13-4112-MWF (JPR) MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE BACKGROUND On June 7, 2013, Petitioner, through counsel, filed a 19 Petition for Writ of Habeas Corpus by a Person in State Custody. 20 Because counsel did not use the required Central District of 21 California habeas form, see Local Rule 83-16.1, the Court 22 dismissed the Petition with leave to amend. 23 Petitioner filed an amended Petition. On July 12, 2013, At the same time, he 24 submitted an Election Regarding Consent to Proceed Before a 25 United States Magistrate Judge form, indicating that he 26 voluntarily consented to have a United States Magistrate Judge 27 conduct all further proceedings in this case, decide all 28 dispositive and non-dispositive matters, and order the entry of 1 1 final judgment. The amended Petition purports to challenge 2 Petitioner s 2008 convictions in Los Angeles County Superior 3 Court for murder and related crimes. 4 (Pet. at 2.) On July 19, 2013, because the amended Petition on its face 5 appeared to be untimely, the Court ordered Petitioner to show 6 cause why it should not be dismissed with prejudice because he 7 had failed to comply with the one-year statute of limitations 8 under 28 U.S.C. § 2244(d). To date Petitioner has not responded 9 to the Order to Show Cause, nor has he requested an extension of 10 time within which to do so. 11 DISCUSSION 12 I. The Court s Jurisdiction 13 As an initial matter, the undersigned Magistrate Judge has 14 jurisdiction to deny the amended Petition and dismiss this action 15 with prejudice. Upon the consent of the parties, a magistrate 16 judge may conduct any or all proceedings in a jury or nonjury 17 civil matter and order the entry of judgment in the case. 18 U.S.C. § 636(c)(1). 28 Here, Petitioner is the only party to the 19 proceeding and has consented to the jurisdiction of the 20 undersigned U.S. Magistrate Judge through his counsel;1 21 Respondent has not yet been served and therefore is not yet a 22 party to this action.2 See, e.g., Travelers Cas. & Sur. Co. of 23 1 Habeas counsel consent a 24 jurisdiction on behalf may her client. toMeans,magistrate judge s of Fed. Habeas Manual § 8:57 (updated May 2013) (citing United States v. Muhammad, 165 25 F.3d 327, 331 (5th Cir. 1999)). 26 2 Counsel attached a proof of service to the amended Petition, 27 but it was deficient for several reasons, not least of which that Rule 4 of the Rules Governing § 2254 Cases in U.S. District Courts 28 requires that service be made by the Clerk of Court. See also 2 1 Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) ( A federal 2 court is without personal jurisdiction over a defendant unless 3 the defendant has been served in accordance with Fed. R. Civ. P. 4 4. (internal quotation marks and citation omitted)). 5 parties have consented pursuant to § 636(c)(1). Thus, all See Wilhelm v. 6 Rotman, 680 F.3d 1113, 1119 21 (9th Cir. 2012) (holding that 7 magistrate judge had jurisdiction to sua sponte dismiss 8 prisoner s lawsuit under 42 U.S.C. § 1983 for failure to state 9 claim because prisoner consented and was only party to action); 10 United States v. Real Prop., 135 F.3d 1312, 1317 (9th Cir. 1998) 11 (holding that magistrate judge had jurisdiction to enter default 12 judgment in in rem forfeiture action even though property owner 13 had not consented because § 636(c)(1) requires consent only of 14 parties and property owner, having failed to comply with 15 applicable filing requirements, was not party ); Carter v. 16 Valenzuela, No. CV 12-05184 SS, 2012 WL 2710876, at *1 n.3 (C.D. 17 Cal. July 9, 2012) (after Wilhelm, finding that magistrate judge 18 had authority to deny successive habeas petition when petitioner 19 had consented and respondent had not yet been served with 20 petition). 21 Moreover, a district court has the authority to raise the 22 statute-of-limitations issue sua sponte when untimeliness is 23 obvious on the face of a petition; it may summarily dismiss the 24 petition on that ground pursuant to Rule 4 of the Rules Governing 25 § 2254 Cases in the U.S. District Courts, as long as the court 26 27 Local R. 4-4 & App. B.2 (providing that entry on docket of court order to respond to habeas petition complies with the requirement 28 of service of the petition on the respondent ). 3 1 gives the petitioner adequate notice and an opportunity to 2 respond. Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). 3 Here, the Court gave Petitioner notice that his amended Petition 4 appeared to be untimely and an opportunity to respond, but he has 5 not done so. 6 Accordingly, this Court has the authority to deny the 7 amended Petition and dismiss this action with prejudice. 8 II. The Petition Is Not Timely 9 For the reasons stated in the Court s July 19, 2013 Order to 10 Show Cause, and because Petitioner has not offered any evidence 11 or argument to rebut the conclusions drawn therein despite having 12 been given the opportunity to do so, the Court finds that the 13 deadline for Petitioner to file his federal habeas Petition was 14 April 13, 2011, and Petitioner s June 7, 2013 habeas Petition was 15 therefore more than two years late. 16 17 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the 18 Petition and dismissing this action with prejudice. 19 20 21 DATED: August 23, 2013 22 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 23 24 25 26 27 28 4

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