-JFM (HC) Dustin v. Lopez, No. 2:2010cv02107 - Document 11 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 05/13/11 ORDERING petitioner is granted leave to proceed in forma pauperis 5 . Petitioner's motion for copies of transcritps 6 is denied. Petitioner's request for appointment of cousnel is denied. The Clerk of Court is directed to assign a District Judge to this matter. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that the petition for writ of habeas corpus be dismissed; and the court decline to issue a certificate of appealability. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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-JFM (HC) Dustin v. Lopez Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 D. DUSTIN, Petitioner, 11 12 13 14 15 16 17 18 19 20 No. 2:10-cv-2107 JFM (HC) vs. RAUL LOPEZ, Warden, ORDER AND Respondent. FINDINGS & RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 21 dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to 22 it that the petitioner is not entitled to relief in the district court ....“ Rule 4 of the Rules Governing 23 Section 2254 Cases. The court must summarily dismiss a petition “[i]f it plainly appears from 24 the petition and any attached exhibits that the petitioner is not entitled to relief in the district 25 court....” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 26 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1 Dockets.Justia.com 1 (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting each 2 ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the petition 3 must state facts that point to a real possibility of constitutional error. Rule 4, Advisory 4 Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are 5 vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d 6 at 491. Further, the Advisory Committee Notes to Rule 8 indicate that the court may 7 8 dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to 9 the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory 10 Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir. 11 2001). BACKGROUND 12 Petitioner, who is currently incarcerated at Corcoran State Prison (“CSP”), was 13 14 sentenced in June 1995 to a term of 39 years, 4 months, and assessed a restitution fine. See Pet. 15 at 11. Although the precise nature of the petition is unclear1, it appears that petitioner is 16 contesting the imposition of the restitution fine, as well as his conviction for, inter alia, alleged 17 violations of the Fifth, Sixth and Fourteenth Amendments. Petitioner also requests a photocopy 18 of the entire state court record because he asserts that his copy was improperly disposed of by 19 CSP staff on January 8, 2003. See Doc. No. 1 at 46. Lastly, petitioner seeks appointment of 20 counsel. 21 22 23 24 25 26 1 Petitioner has filed multiple complaints pursuant to 42 U.S.C. § 1983 and petitions for habeas relief pursuant to 28 U.S.C. § 2254 in this court. Repeatedly, the court has addressed the illegibility of the pleadings, the vagueness of the claims and the disorganized formatting, making it difficult for the court to read and understand petitioner’s claims. See, e.g., 1:03-cv-5626-AWI-LJO, Doc. No. 10; 1:05-cv-0697-AWI-DLB, Doc. No. 24; 2:08-cv-0995-GEB-DAD, Doc. No. 31. Upon review of the petition and the attached documents, the court has deciphered the petition as best as it can. 2 Following his conviction and sentence in June 1995, petitioner sought direct 1 2 review in the state appellate court. See Doc. No. 1 at 18. That petition was denied in 1996.2 3 Petitioner then sought review before the state supreme court.3 On an unidentified date, that court 4 denied his appeal as untimely. See Doc. No. 1 at 18. Petitioner filed a petition for writ of habeas corpus in an unidentified state court 5 6 either in 1996 or 1997. See Doc. No. 1 at 18. His petition was subsequently denied by the state 7 appellate court. Id. It is unclear whether petitioner appealed to the state supreme court. Petitioner then appears to have filed a second petition for writ of habeas corpus in 8 9 the Tehama County Superior Court, which summarily denied the petition on July 12, 2010 as 10 incoherent and ineligible, and as untimely with citation to In re Clark, 5 Cal.4th 750 (Cal. 1993). 11 See Doc. No. 1 at 20. There is no indication that petitioner appealed to either the California 12 Court of Appeal or to the California Supreme Court. DISCUSSION 13 Upon careful consideration, the undersigned finds that it plainly appears from the 14 15 face of the petition that petitioner’s claims are barred by the statute of limitations 16 A. Timeliness of the Petition Because the instant petition was filed after April 24, 1996, the effective date of the 17 18 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), AEDPA applies in this 19 proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); 20 Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). Under the AEDPA statute of limitations, a petition for writ of habeas corpus 21 22 generally must be filed within one year from “the date on which the judgment became final by 23 conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. 24 25 2 Petitioner fails to identify the dates of his appeals other than by year. 26 3 Petitioner does not identify either the date or year of this appeal. 3 1 § 2244(d)(1)(A). The Ninth Circuit Court of Appeals has held that the “time for seeking direct 2 review” under 28 U.S.C. § 2244(d)(1)(A) includes the ninety-day period within which a 3 petitioner can file a petition for a writ of certiorari from the United States Supreme Court under 4 Supreme Court Rule 13, whether or not the petitioner actually files such a petition. Bowen v. 5 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In the present case, petitioner’s conviction and sentence became “final” within the 6 7 meaning of AEDPA either in 1996 or 1997. Even without knowing the precise date, it is clear 8 that the instant petition is untimely, having been filed in 2010, at least thirteen years later. While 9 the statute of limitations may be tolled to account for a petitioner’s applications for post- 10 conviction relief or collateral review in the state courts, see 28 U.S.C. § 2244(d)(2), and can be 11 equitably tolled under “extraordinary circumstances,” see Laws v. Lamarque, 351 F.3d 919, 922 12 (9th Cir. 2003), no such grounds for tolling exist here. Therefore, the petition should be 13 dismissed as untimely. Insofar as petitioner contends that his legal documents were improperly disposed 14 15 of by CSP correctional officers and, as relief, seeks a photocopy of those documents, those 16 claims are properly brought pursuant to 42 U.S.C. § 1983. Those claims, however, are also 17 barred by the statute of limitations. The statute of limitations for claims brought under 42 U.S.C. § 1983 is governed 18 19 by the forum state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 20 261, 277 (1985). The statute of limitations in the instant case is one year. Cal. Code of Civ. Pro. 21 § 340(3). The Ninth Circuit has also held that the appropriate statute of limitations for § 1983 22 claims in California is one year. McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 23 1991). 24 Where a federal court borrows a state’s statute of limitations, federal law 25 determines when the period begins to run. Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 26 873 (9th Cir.), cert. denied, 469 U.S. 932 (1984). Under federal law, the limitation period begins 4 1 to run when the plaintiff knows or has reason to know of the injury that is the basis for the action. 2 Trotter v. International Longshoreman’s and Warehousemen’s Union, Local 13, 704 F.2d 1141, 3 1143 (9th Cir. 1983). 4 Here, petitioner was aware of the loss of his legal property as early as September 5 5, 2003, as evidenced by the informal response to his inmate appeal addressing this matter. See 6 Doc. No. 1 at 46. This action commenced on August 9, 2010. Thus, petitioner was aware of the 7 facts underlying his claim at least more than one year prior to filing suit (indeed, petitioner was 8 aware of it for nearly seven years prior to filing). As such, petitioner’s claims are time-barred. 9 B. Appointment of Counsel 10 Petitioner has also requested the appointment of counsel. There currently exists 11 no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 12 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of 13 counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. 14 Governing § 2254 Cases. In the present case, the court does not find that the interests of justice 15 would be served by the appointment of counsel at the present time. 16 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United 17 States District Courts, “[t]he district court must issue or a deny a certificate of appealability when 18 it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of 19 appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial 20 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either 21 issue a certificate of appealability indicating which issues satisfy the required showing or must 22 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). 23 Where, as here, the petition is dismissed on procedural grounds, a certificate of 24 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 25 debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of 26 reason would find it debatable whether the petition states a valid claim of the denial of a 5 1 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 2 McDaniel, 529 U.S. 473, 484 (2000)). After careful review of the entire record herein, this court finds that petitioner has 3 4 not satisfied the first requirement for issuance of a certificate of appealability in this case. 5 Specifically, there is no showing that jurists of reason would find it debatable whether this action 6 is barred by the statute of limitations. Accordingly, the court should not issue a certificate of 7 appealability. 8 Therefore, IT IS HEREBY ORDERED that: 9 1. Petitioner is granted leave to proceed in forma pauperis; 10 2. Petitioner’s motion for copies of transcripts is denied; 11 3. Petitioner’s request for appointment of counsel is denied; 12 4. The Clerk of the Court assign a district judge to this matter; and 13 IT IS HEREBY RECOMMENDED that: 14 1. The petition for writ of habeas corpus be dismissed; and 15 2. The court decline to issue a certificate of appealability. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be filed and served within fourteen days after service of the objections. The 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 6 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: May 13, 2011. 4 5 6 7 /014;dust2107.114.jfm 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7