(HC) Kirvin v. Clay, No. 1:2009cv00265 - Document 17 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Respondent's 14 Motion to Dismiss be Granted, and the 1 petition for writ of habes corpus be dismissed with prejudice for violating the statute of limitations, signed by Magistrate Judge Gary S. Austin on 8/06/2009. Referred to Judge O'Neill; Objections to F&R due by 9/9/2009. (Flores, E)
Download PDF
<![CDATA[
(HC) Kirvin v. Clay Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 DARIUS EUGENE KIRVIN, 11 Petitioner, 12 13 v. 14 IVAN D. CLAY, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-00265 LJO GSA HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #14] 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 BACKGROUND 20 Petitioner is currently in the custody of the California Department of Corrections pursuant to 21 a judgment of the Superior Court of California, County of Stanislaus, following his conviction by 22 jury trial on March 26, 1996, of first degree murder, attempted voluntary manslaughter, and assault 23 with a deadly weapon by means likely to cause great bodily injury. (LD 1.1) The jury also found true 24 enhancements for use of a deadly weapon and for intentionally inflicting great bodily injury. (LD 1.) 25 On April 23, 1996, he was sentenced to serve an indeterminate term of thirty-three years, six months 26 to life in state prison. (LD 1.) 27 28 1 “LD” refers to the documents lodged by Respondent with his motion to dismiss. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 Petitioner appealed the judgment to the California Court of Appeals, Fifth Appellate District. 2 On March 20, 1997, the appellate court affirmed the judgment. (LD 2.) Petitioner did not petition 3 for review in the California Supreme Court. 4 5 Petitioner filed three post-conviction collateral challenges with respect to the judgment in the state courts, all petitions for writ of habeas corpus, as follows: 6 1. Stanislaus County Superior Court Filed: April 22, 20072; Denied: May 3, 2007; 2. California Court of Appeals, Fifth Appellate District Filed: June 17, 2007; Denied: July 16, 2007; 3. California Supreme Court Filed: August 29, 2007; Denied: February 20, 2008. 7 8 9 10 11 12 (LD 3-8.) 13 On February 3, 2009, Petitioner filed the instant federal petition for writ of habeas corpus in 14 the Sacramento Division of this Court. The petition was ordered transferred to the Fresno Division 15 on February 11, 2009. On April 23, 2009, Respondent filed a motion to dismiss the petition as being 16 filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) and for failing to 17 exhaust state remedies.3 Petitioner did not file an opposition. 18 19 DISCUSSION A. Procedural Grounds for Motion to Dismiss 20 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 21 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 22 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 23 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 24 25 26 27 2 Pursuant to the mailbox rule set forth in Houston v. Lack, the Court deems the several habeas petitions filed on the date Petitioner signed them and presumably handed them to prison authorities for mailing, as opposed to the date of their receipt by the court clerk. Huizar v. Carey, 273 F.3d 1220, 1222, (9 th Cir. 2001), citing Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988). 3 28 Because the petition is untimely and should be dismissed with prejudice, the Court does not find it necessary to address the exhaustion issue. U .S. D istrict C ourt E. D . C alifornia cd 2 1 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 2 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 3 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 4 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 5 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 6 Thus, a 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 & n. 12. 8 9 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period. Because Respondent's motion to dismiss is similar in procedural 10 standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default 11 and Respondent has not yet filed a formal answer, the Court will review Respondent’s motion to 12 dismiss pursuant to its authority under Rule 4. 13 B. Limitation Period for Filing a Petition for Writ of Habeas Corpus 14 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 15 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 16 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 17 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 18 586 (1997). 19 In this case, the petition was filed on February 3, 2009, and therefore, it is subject to the 20 provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners 21 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, 22 § 2244, subdivision (d) reads: 23 (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 – 24 25 (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; 26 (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; 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3 1 (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 2 3 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 4 (2) The time during which a properly filed application for State post-conviction 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. 5 6 28 U.S.C. § 2244(d). 7 In most cases, the limitations period begins running on the date that the petitioner’s direct 8 review became final. In this case, the California Court of Appeals affirmed Petitioner’s conviction 9 on March 20, 1997. Petitioner did not file a petition for review. According to the Rules of Court, a 10 decision becomes final thirty (30) days after filing, and an appeal must be taken to the California 11 Supreme Court within ten (10) days of finality. Rule 24(a), 28(b), Cal.R.Ct. Thus, direct review 12 concluded on April 29, 1997. Petitioner had one year until April 29, 1998, absent applicable tolling, 13 in which to file his federal petition for writ of habeas corpus. However, Petitioner delayed filing the 14 instant petition until February 3, 2009, nearly 11 years beyond the due date. Absent any applicable 15 tolling, the instant petition is barred by the statute of limitations. 16 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 17 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 18 for State post-conviction or other collateral review with respect to the pertinent judgment or claim is 19 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 20 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 21 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 22 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 23 state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 24 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state petitions will only toll the one-year 25 statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction 26 petition was timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 27 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or determined by 28 U .S. D istrict C ourt E. D . C alifornia cd 4 1 the federal courts to have been untimely in state court will not satisfy the requirements for statutory 2 tolling. Id. 3 As stated above, the statute of limitations began to run on April 30, 1997, and expired on 4 April 29, 1998. Petitioner did not file his first state habeas petition until April 22, 2007. At that 5 point, the limitations period had already expired. Therefore, the state habeas petitions had no tolling 6 consequences. Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000) (Petitioner is not entitled to 7 tolling where the limitations period has already run); see also Webster v. Moore, 199 F.3d 1256 8 (11th Cir.2000); Rendall v. Carey, 2002 WL 1346354 (N.D.Cal.2002). The instant petition is 9 untimely. 10 D. Equitable Tolling 11 The limitations period is subject to equitable tolling if the petitioner demonstrates: “(1) that 12 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 13 way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Irwin v. Department of Veteran 14 Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), 15 citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), cert denied, 522 U.S. 16 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 17 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 18 (9th Cir.1993). In this case, the Court finds no reason to equitably toll the limitations period. 19 RECOMMENDATION 20 Accordingly, the Court hereby RECOMMENDS that Respondent’s motion to dismiss be 21 GRANTED, and the petition for writ of habeas corpus be DISMISSED WITH PREJUDICE for 22 violating the statute of limitations. 23 These Findings and Recommendations are submitted to the Honorable Lawrence J. O’Neill, 24 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 25 Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 26 California. 27 Within thirty (30) days after being served with a copy, any party may file written objections 28 with the court and serve a copy on all parties. Such a document should be captioned “Objections to U .S. D istrict C ourt E. D . C alifornia cd 5 1 Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall be served and 2 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 3 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 4 parties are advised that failure to file objections within the specified time may waive the right to 5 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Dated: 6i0kij August 6, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 6
]]>
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.
