Jose Alfredo Ventura v. People of the State of California and Warden, No. 8:2012cv01046 - Document 11 (C.D. Cal. 2012)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS by Judge Andrew J. Guilford for Report and Recommendation 9 : (See document for details.) IT THEREFORE IS ORDERED that the Petition is denied without leave to amend and Judgment be entered dismissing this action with prejudice. (rla)
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Jose Alfredo Ventura v. People of the State of California and Warden 1 2 3 4 I HEREBY CERTIFY THATTHlS DOCUMENT WAS SERVED FIRST CLASS MAIL POSTAGE PREPAID, TO All 6911NSEL · (QR THEIR RESPECTIVE MOSTRECENT ADDRESS OF RECORD INTHIS ACTION ON THIS DATE. DAT ED: \ 0 . 'l,. 4\,• \-'1- >' .--- • Doc. 11 FILED • SOUTHERN DIVISION CLERK, U.S. DISTRICT COURl OCT 2 9 2012 ? DISTRICT OF CALIFORNIA DEPUTY 5 6 7 UNITED STATES DISTRICT COURT r 8 CENTRAL DISTRICT OF CALIFORNIA I 9 10 13 i ) Petitioner, 11 12 i ) Case No. SACV 12 -1046-AG (JPR) JOSE ALFREDO VENTURA, ) )ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S . ) MAGISTRATE JUDGE vs. PEOPLE OF THE STATE OF CALIFORNIA et al., 14 ) ) ) Re spondent. ) ) 15 16 Pursuant to 28 u.s.c. § 636, the Court has reviewed the 17 Petition, records on file, and Report and Recommendation o f t he 18 u.s. 19 what he styled as "Petitioner's Objection and Points of Magistrate Judge. On September 21, 2012, Petitioner filed 20 Authorities in Support of Granting Disposition for Habeas Corpus 21 Pursuant with U.S.C.," which the court i nterprets to be his 22 objections to the Magistrate Judge 's Report and Recommendat i on. 23 24 Petitioner, who was convi cte d and sentenced in 1983 and who challenges t he state court's refusal later that year to allow him 25 t o withdraw his guilty p l ea, claims for the firs t time in the 26 Objections to be entitled to e quitable tolling . He argues: 27 Petitione r's claims a r e and appear tha t Petitioner ha s a 28 basis to contend that he is entitled t o a later trigger 1 Dockets.Justia.com 1 i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 date under [28 U.S.C. ] § 2244{d) {1) {B). Petitioner has argued that he was impeded f [ro] m filing his federal Petition due to institutional placement, where institution remained on total lock down for a ll Hispanic inmates, for a period of five mon ths; further more because of petitioner being from another county and requiring an interpreter throughout all trial proceeding, which was the reason for petitioner requiring jail house legal represent ation, before understand that he had a constitutional c l a i m that required his appealing before the courts. Petitioner was aware of attorney's effectiveness prior to the plea and why the trial court abused its discretion in refus ing to allow him to withdraw his guilty plea in 1983. {Obj ecti ons at 3- 4. ) As the Magistrate Judge noted in the Report and Recommendation, the Petition was filed some 15 years after the AEDPA statute of limitations had expired. Thus, the fact that Petitioner's institution· was on lockdown for five months cannot just ify sufficient equit able tolling to render the Petition timely. Moreover, the mere fact that Petitioner apparently needed assistance from a "jailhouse lawyer" before he reali zed that he might have a federal habeas claim cannot justify tolling. See Chaffer v. Prosper, 592 F . 3d 1046, 1049 (9th Cir. 2010) (no tolling for delay caused by "reliance on [inmate] helpers who were transferred or too busy" ) ; Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th cir. 2006) (prose petiti oner's l ack of legal sophistication insufficient) . Petitioner does not further 2 I explain why he deserves equitable tolling, and the showing quoted 2 above is clearly inadequat.e. The Court thus accepts the findings 3 and recommendations of the Magistrate Judge. 4 IT THEREFORE IS ORDERED that the Petition is denied without 5 leave to amend and Judgment be entered dismissing this action 6 with prejudice. 7 8 DATED: October 28, 2012 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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