(HC) Thuemler v. Stanislaus County, No. 1:2016cv00175 - Document 23 (E.D. Cal. 2016)
Court Description: ORDER GRANTING Respondent's 22 Motion to Dismiss; ORDER DISMISSING Petition for Writ of Habeas Corpus as Untimely; ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Michael J. Seng on 11/8/2016. CASE CLOSED. (Sant Agata, S)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 Case No. 1:16-cv-00175 MJS (HC) JUSTIN MICHAEL THUEMLER, ORDER GRANTING RESPONDENT’S Petitioner, MOTION TO DISMISS 14 [Doc. 22] v. 15 16 17 JOE LIZARRAGA, Respondent. 18 19 20 21 22 23 24 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Joe Lizarraga, Warden of Mule Creek State Prison is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 9, 14.) 25 26 27 I. Background Petitioner is currently in the custody of the California Department of Corrections 28 1 1 pursuant to a judgment of the Superior Court of California, County of Stanislaus. 2 (Lodged Doc. 1.) On August 2, 2013, Petitioner plead guilty to one count of committing a 3 lewd act upon a child and one count of possession of an image of a minor engaged in 4 sexual conduct. (Id.) On September 9, 2013, he was sentenced to a determinate term of 5 six years in state prison. (Id.) 6 Petitioner did not directly appeal his conviction. However, Petitioner proceeded to 7 file a collateral appeal to the conviction in state court. (See Lodged Docs. 2-3.) 8 Petitioner filed a petition for writ of habeas corpus with the Stanislaus County Superior 9 Court on March 15, 2015.1 (Id.) The petition was denied on April 9, 2015. (Id.) 10 Petitioner filed the instant federal habeas petition on January 27, 2016.2 (Pet.) On 11 September 28, 2016, Respondent filed a Motion to Dismiss the petition as being filed 12 outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d) and for failure 13 to exhaust judicial remedies. (Mot. to Dismiss, ECF No. 22.) Petitioner did not file an 14 opposition to the motion. The matter stands ready for adjudication. 15 16 II. Discussion 17 A. Procedural Grounds for Motion to Dismiss 18 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 19 dismiss a petition if it “plainly appears from the petition and any attached exhibits that the 20 petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing 21 Section 2254 Cases. 22 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an 23 answer if the motion attacks the pleadings for failing to exhaust state remedies or being 24 25 26 27 28 1 Under the mailbox rule, the Court deems petitions filed on the date Petitioner handed a petition to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385, 101 L. Ed. 2d 245 (1988); Hernandez v. Spearman, 764 F.3d 1071 (9th Cir. 2014); see also Rule 3(d) of the Rules Governing Section 2254 Cases. Here, the petition was signed on March 15, 2015, and filed with the Court on April 7, 2015. Petitioner shall be provided the benefit of considering the petition filed on March 15, 2015. 2 Although the petition was filed on February 1, 2016, the Court will consider the petition filed on January 27, 2016, the date Petitioner signed the petition. 2 1 in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to 3 exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using 4 Rule 4 as procedural grounds to review motion to dismiss for state procedural default); 5 Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a 6 respondent can file a motion to dismiss after the court orders a response, and the Court 7 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & 8 n. 12. 9 For the sake of judicial efficiency, the Court shall review Respondent's motion to 10 dismiss based on a violation of the one-year limitations period under 28 U.S.C. § 11 2244(d)(1). Because Respondent's statute of limitations claim is similar in procedural 12 standing to a motion to dismiss for failure to exhaust state remedies or for state 13 procedural default and Respondent has not yet filed a formal answer, the Court will 14 review Respondent’s motion to dismiss pursuant to its authority under Rule 4. 15 B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A) 16 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death 17 Penalty Act of 1996 (hereinafter “AEDPA”). AEDPA imposes various requirements on all 18 petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 19 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 20 Cir. 1997). 21 In this case, the petition was filed on January 27, 2016, and is subject to the 22 provisions of AEDPA. AEDPA imposes a one-year period of limitation on petitioners 23 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As 24 amended, § 2244, subdivision (d) reads: 25 26 27 28 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 3 1 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 2 3 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 4 5 6 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 7 8 9 10 (2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). 11 Under § 2244(d)(1)(A), the limitations period begins running on the date that the 12 petitioner's direct review became final or the date of the expiration of the time for seeking 13 such review. In this case, Petitioner did not appeal the judgment issued on September 9, 14 2013. Accordingly, his conviction became final 60 days later on November 8, 2013. Cal. 15 Rules of Court 8.308(a); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). The 16 AEDPA statute of limitations began to run the following day, on November 9, 2013. 17 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). 18 Petitioner would have one year from November 9, 2013, absent applicable tolling, 19 in which to file his federal petition for writ of habeas corpus. However, Petitioner delayed 20 in filing the instant petition until January 27, 2016, over a year after the statute of 21 limitations period expired. Absent the later commencement of the statute of limitations 22 or any applicable tolling, the instant petition is barred as untimely. 23 C. 24 Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed 25 application for State post-conviction or other collateral review with respect to the 26 pertinent judgment or claim is pending shall not be counted toward” the one year 27 limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held 28 4 1 the statute of limitations is tolled where a petitioner is properly pursuing post-conviction 2 relief, and the period is tolled during the intervals between one state court's disposition of 3 a habeas petition and the filing of a habeas petition at the next level of the state court 4 system. 536 U.S. 214, 216 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th 5 Cir. 1999). Nevertheless, state petitions will only toll the one-year statute of limitations 6 under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was 7 timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 8 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or 9 determined by the federal courts to have been untimely in state court will not satisfy the 10 requirements for statutory tolling. Id. 11 According to the state court records provided by Respondent, Petitioner filed his 12 first petition for writ of habeas corpus on March 15, 2015. However, the limitations period 13 had already expired at that time. 14 The limitations period commenced on November 9, 2013 and expired one year 15 later on November 8, 2014. Accordingly, the statute of limitations expired over a year 16 before the instant federal petition was filed on January 27, 2015. While Petitioner filed a 17 habeas petition on March 15, 2015, petitions filed after the expiration of the statute of 18 limitations period have no tolling effect. Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 19 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has 20 ended before the state petition was filed."). 21 22 The present petition was filed over a year after the expiration of the year statute of limitations period and is untimely. 23 D. Equitable Tolling 24 The limitations period is subject to equitable tolling if the petitioner demonstrates: 25 “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 26 circumstance stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2560-62 (2010); 27 quoting Pace v. DiGuglielmo. Petitioner bears the burden of alleging facts that would 28 give rise to tolling. Pace, 544 U.S. at 418; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th 5 1 Cir. 1993). Petitioner has not presented any argument that he is entitled to equitable 2 tolling of the petition. 3 E. Exhaustion 4 Respondent, in his motion to dismiss, asserts an alternative ground for dismissal 5 based on failure to exhaust state remedies. (See Mot. to Dismiss at 4-5.) As the petition 6 is untimely and subject to dismissal, in an exercise of judicial efficiency, the Court will not 7 address Respondent's claims regarding failure to exhaust judicial remedies. 8 9 IV. Conclusion 10 As explained above, Petitioner failed to file the instant petition for Habeas Corpus 11 within the one year limitation period required by 28 U.S.C. § 2244(d). Petitioner is not 12 entitled to the benefit of statutory or equitable tolling, and the petition was untimely filed. 13 Based on the foregoing, the Court grants Respondent’s motion to dismiss. 14 15 V. Order 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Respondent's Motion to Dismiss (Doc. 22) is GRANTED; 18 2. The Petition for Writ of Habeas Corpus is DISMISSED with prejudice as 19 untimely; 20 3. All pending motions (Docs. 11, 12, 20) are DENIED as moot; and 21 4. The Court DECLINES to issue a Certificate of Appealability. 28 U.S.C. § 22 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a 23 COA, petitioner must show: (1) that jurists of reason would find it debatable 24 whether the petition stated a valid claim of a denial of a constitutional right; 25 and (2) that jurists of reason would find it debatable whether the district 26 court was correct in its procedural ruling. Slack, 529 U.S. 484. In the 27 present case, jurists of reason would not find debatable whether the 28 petition was properly dismissed with prejudice as time-barred under 28 6 1 U.S.C. § 2244(d)(1). Petitioner has not made the required substantial 2 showing of the denial of a constitutional right. 3 4 5 6 IT IS SO ORDERED. Dated: November 8, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
