(HC) Rossel v. Marshal, No. 1:2010cv00174 - Document 23 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Respondent's 14 Motion to Dismiss signed by Magistrate Judge Gary S. Austin on 08/30/2010. Referred to Judge Wanger; Objections to F&R due by 10/4/2010. (Flores, E)
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(HC) Rossel v. Marshal Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 RUBEN ROSSEL, ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 v. 13 14 JOHN MARSHAL, Warden, 15 Respondent. 1:10-CV-00174 OWW GSA HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #14] ) 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. BACKGROUND1 19 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 Kings, following his conviction by plea of 22 guilty on October 25, 2002, to receiving stolen property (Cal. Penal Code § 496). On November 25, 23 2002, Petitioner was sentenced to serve an indeterminate term of 25 years to life in state prison. 24 Petitioner appealed the conviction to the California Court of Appeals, Fifth Appellate 25 District. On September 16, 2003, the appellate court affirmed the judgment. Petitioner did not seek 26 review in the California Supreme Court. He also did not file any state post-conviction collateral 27 28 1 This information is derived from the documents lodged by Respondent with his response. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 challenges. 2 On January 11, 20102, Petitioner filed a federal petition for writ of habeas corpus in this 3 Court. On June 17, 2010, Respondent filed a motion to dismiss the petition as being filed outside the 4 one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) and for failure to exhaust state 5 remedies. Petitioner filed an opposition on August 12, 2010. Respondent did not file a reply. 6 7 DISCUSSION A. Procedural Grounds for Motion to Dismiss 8 9 10 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 11 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 12 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 13 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 14 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 15 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 16 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 17 Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court 18 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 19 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s 20 one-year limitations period and for failure to exhaust state remedies. Accordingly, the Court will 21 review Respondent’s motion to dismiss pursuant to its authority under Rule 4. 22 B. Limitation Period for Filing a Petition for Writ of Habeas Corpus 23 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 24 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 25 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 26 27 28 2 Although the petition was filed in this Court on February 1, 2010, it contains a proof of service dated January 11, 2010. Pursuant to the mailbox rule, the Court will deem the petition filed on January 11, 2010, the date Petitioner presumably handed his petition to prison authorities for filing. Houston v. Lack, 487 U.S. 266, 276 (1988) . U .S. D istrict C ourt E. D . C alifornia cd 2 1 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 2 586 (1997). 3 In this case, the petition was filed on January 11, 2010, and therefore, it is subject to the 4 provisions of the AEDPA. The AEDPA imposes a one-year limitations period on petitioners seeking 5 to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, 6 subdivision (d) reads: 7 (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 – 8 9 (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; 10 (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; 11 12 (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 13 14 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 16 (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. 17 18 28 U.S.C. § 2244(d). 19 In most cases, the limitations period begins running on the date that the petitioner’s direct 20 review became final. In this case, the appellate court affirmed judgment on September 16, 2003. 21 Petitioner did not seek review in the California Supreme Court. Thus, direct review concluded on 22 October 26, 2003, when the forty (40) day period for seeking review in the California Supreme Court 23 expired. Cal. Rules of Court, rules 24 and 28. The statute of limitations commenced on the 24 following day, October 27, 2003, and expired one year later on October 26, 2004. Patterson v. 25 Stewart, 251 F.3d 1243, 1246 (9th Cir.2001). Here, Petitioner delayed filing the instant petition until 26 January 11, 2010, exceeding the due date by almost six years. Absent any applicable tolling, the 27 instant petition is barred by the statute of limitations. 28 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) U .S. D istrict C ourt E. D . C alifornia cd 3 1 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 2 for State post-conviction or other collateral review with respect to the pertinent judgment or claim is 3 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In 4 Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is 5 properly pursuing post-conviction relief, and the period is tolled during the intervals between one 6 state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the 7 state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 8 1999), cert. denied, 120 S.Ct. 1846 (2000). 9 As previously stated, the statute of limitations began to run on October 27, 2003, and expired 10 on October 26, 2004. Petitioner did not file any post-conviction applications for collateral relief in 11 the state courts in that time frame. Accordingly, he is not entitled to statutory tolling, and the federal 12 petition remains untimely. 13 D. Exhaustion 14 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 15 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 16 exhaustion doctrine is based on comity to the state court and gives the state court the initial 17 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 18 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 19 1163 (9th Cir. 1988). 20 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 21 full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. 22 Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal 23 court will find that the highest state court was given a full and fair opportunity to hear a claim if the 24 petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. 25 Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual 26 basis). 27 28 In this case, Petitioner has not presented any of his claims to the California Supreme Court. Respondent correctly argues that the petition is unexhausted and must be dismissed. 28 U.S.C. § U .S. D istrict C ourt E. D . C alifornia cd 4 1 2254(b)(1). 2 RECOMMENDATION 3 Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be 4 GRANTED and the habeas corpus petition be DISMISSED with prejudice for Petitioner’s failure to 5 comply with 28 U.S.C. § 2244(d)’s one year limitation period and for failure to exhaust state 6 remedies. 7 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 8 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 9 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within thirty (30) days after date of service of this Findings and Recommendation, any party may 11 file written objections with the Court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 13 Objections shall be served and filed within fourteen (14) days after service of the Objections. The 14 Finding and Recommendation will then be submitted to the District Court for review of the 15 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure 16 to file objections within the specified time may waive the right to appeal the Order of the District 17 Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: 6i0kij August 30, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 5