(HC) Figueroa-Guizar v. Keeton, No. 1:2017cv00504 - Document 32 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the Petition for Writ of Habeas Corpus with prejudice re 1 Petition for Writ of Habeas Corpus, filed by Humberto Figueroa-Guizar, 18 MOTION to DISMISS filed by Keeton ;,referred to Judge Drozd,signed by Magistrate Judge Sheila K. Oberto on 05/8/18. Objections to F&R due by 6/11/2018 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HUMBERTO FIGUEROA-GUIZAR, 12 13 14 15 No. 17-cv-00504-DAD-SKO Petitioner, v. KEETON, Warden, FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS Respondent. 16 (Doc. 1) 17 18 19 20 Petitioner, Humberto Figueroa-Guizar, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 21 22 23 On March 27, 2017, Petitioner filed his petition for writ of habeas corpus before this Court. Respondent moved to dismiss the petition as untimely on August 7, 2017. Petitioner filed 24 an opposition to the motion to dismiss on October 13, 2017, and Respondent filed a reply to the 25 opposition on October 20, 2017. 26 On October 25, 2017, United States Magistrate Judge Jennifer L. Thurston filed Findings 27 and Recommendations, in which she recommended Respondent’s motion to dismiss be granted, 28 1 1 because Petitioner failed to comply with 19 U.S.C. § 2244(d)’s one year limitations period. (Doc. 2 25 at 5.) 3 On November 20, 2017, Petitioner filed objections to the Findings and Recommendations in which he stated he is unable to read, write, or speak English, the prison at 4 which he is incarcerated has no Spanish-speaking clerks, the law library contains no materials for 5 6 Spanish-speaking inmates, and there were no inmates available to help him translate materials 7 into Spanish. (Doc. 26 at 5-7.) Petitioner maintained that he was not able to file documents for 8 his application for habeas relief until another inmate, William J. Long, noticed that he needed 9 help in the prison library and offered to assist him. Id. at 6. Based on these assertions, Petitioner 10 asked the Court for equitable tolling to excuse his failure to timely file his petition for writ of 11 habeas corpus. 12 13 14 On February 8, 2018, United States District Judge Dale A. Drozd declined to adopt the Findings and Recommendations. (Doc. 29.) Judge Drozd noted that Petitioner’s claims in his 15 objections alone did not establish sufficient grounds to grant equitable tolling. Id. at 2 (citing 16 Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (“a non-English speaking petitioner 17 seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA 18 19 time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.”)). 20 21 22 However, Judge Drozd noted that these claims had not been presented to the Court prior the issuance of the Findings and Recommendations and found that Petitioner’s claims merited 23 granting him an opportunity to further develop facts with respect to equitable tolling. Id. at 2-3. 24 Judge Drozd declined to adopt the Findings and Recommendations and referred the matter back 25 to the Magistrate Judge for further factual development concerning equitable tolling. Id. at 3-4. 26 On April 3, 2018, Judge Thurston granted Petitioner 30 days leave to provide evidence 27 concerning whether Petitioner is entitled to equitable tolling. (Doc. 30.) Although 30 days have 28 2 1 passed, Petitioner has not filed any evidence of equitable tolling with the Court. Based on the 2 foregoing, the undersigned recommends that the Court dismiss the petition for writ of habeas 3 corpus with prejudice. 4 These Findings and Recommendations will be submitted to the United States District 5 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 7 (30) days after being served with these Findings and Recommendations, either party may file 8 written objections with the Court. The document should be captioned AObjections to Magistrate 9 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 10 11 filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may constitute waiver of the right to appeal the District 12 13 14 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: May 8, 2018 /s/ 18 Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3 .

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