-DAD (HC) Zepeda v. Hubbard, No. 2:2011cv01757 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/1/11 ORDERING that 2 Motion to Appoint Counsel is DENIED; Clerk of the Court is directed to randomly assign a United States District Judge to this action; It is RECOMMENDED that petitioner's 1 Petition for Writ of Habeas Corpus be dismissed as barred by the statute of limitations; and this action be closed; referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days.(Dillon, M)
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-DAD (HC) Zepeda v. Hubbard Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SANTOS ZEPEDA, 11 12 13 14 Petitioner, vs. SUZAN L. HUBBARD, Warden, 17 FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. 18 19 ORDER AND Respondent. 15 16 No. CIV S-11-1757 DAD P PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 20 dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to 21 it that the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing 22 Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may 23 dismiss a petition for writ of habeas corpus at several stages of a case, including “summary 24 dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the 25 answer and petition are considered; or a dismissal after consideration of the pleadings and an 26 expanded record.” 1 Dockets.Justia.com 1 Moreover, the Ninth Circuit has held that a district court may dismiss sua sponte a 2 habeas petition on the grounds that it is untimely under the statute of limitations so long as the 3 court provides the petitioner adequate notice of its intent to dismiss and an opportunity to 4 respond. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). These findings and 5 recommendations are intended to notify petitioner of the court’s intention to dismiss the instant 6 petition on the ground that it is untimely under the Antiterrorism and Effective Death Penalty Act 7 (“AEDPA”). If petitioner desires to respond and demonstrate to the court that he has filed this 8 action within the applicable on-year statute of limitations or is eligible for statutory or equitable 9 tolling of the limitations period, he may do so by filing objections to these findings and 10 recommendations. 11 BACKGROUND 12 On June 30, 2011, petitioner commenced this action by filing a petition for writ of 13 habeas corpus. According to the petition, on October 10, 2006, a Butte County Superior Court 14 jury convicted petitioner of first-degree murder, attempted murder, and various other charges. 15 Pursuant to the jury’s verdict, the trial court sentenced petitioner to eighty-four years to life in 16 state prison. (Pet. at 2.) 17 Petitioner appealed his conviction to the California Court of Appeal for the Third 18 Appellate District. The state appellate court affirmed his judgment of conviction. Petitioner then 19 filed a petition for review. On December 17, 2008, the California Supreme Court denied review. 20 Other than his direct appeal, petitioner has not filed any other petitions, applications, or motions 21 with respect to his judgment of conviction in any court, state or federal. (Pet. at 3.) 22 23 ANALYSIS I. The AEDPA Statute of Limitations 24 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death 25 Penalty Act (“AEDPA”). AEDPA amended 28 U.S.C. § 2244 by adding the following provision: 26 ///// 2 1 2 (d) (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 – 3 4 (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; 5 6 7 8 (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; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 9 10 11 12 13 14 newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (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. 15 16 The AEDPA’s one-year statute of limitations applies to all federal habeas corpus petitions filed 17 after the statute was enacted and therefore applies to pending petition. See Lindh v. Murphy, 521 18 U.S. 320, 322-23 (1997). 19 II. Application of § 2244(d)(1)(A) 20 As noted above, on October 10, 2006, a Butte County Superior Court jury 21 convicted petitioner and he was subsequently sentenced to eighty-four years to life in state 22 prison. The California Court of Appeal affirmed his judgment of conviction. On December 17, 23 2008, the California Supreme Court denied review. 24 For purposes of federal habeas review, petitioner’s conviction became final on 25 March 17, 2009, ninety days after the California Supreme Court denied his petition for review. 26 See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007); Bowen v. Roe, 188 F.3d 1157, 3 1 1158-59 (9th Cir. 1999). The AEDPA statute of limitations period began to run the following 2 day, on March 18, 2009, and expired one year later on March 17, 2010. Even with application of 3 the mailbox rule, petitioner did not file his original federal habeas petition with this court until 4 June 27, 2011. Accordingly, petitioner’s federal petition for writ of habeas corpus is untimely by 5 more than a year unless he is entitled to the benefit of tolling. 6 III. Application of § 2244(d)(2) 7 “The time during which a properly filed application for State post-conviction or 8 other collateral review with respect to the pertinent judgment or claim is pending shall not be 9 counted” toward the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of 10 limitations is not tolled during the interval between the date on which a judgment becomes final 11 and the date on which the petitioner files his first state collateral challenge because there is no 12 case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once a petitioner 13 commences state collateral proceedings, a state habeas petition is “pending” during a full round 14 of review in the state courts, including the time between a lower court decision and the filing of a 15 new petition in a higher court, as long as the intervals between the filing of those petitions are 16 “reasonable.” Carey v. Saffold, 536 U.S. 214, 222-24 (2002). 17 In this case, petitioner is not entitled to statutory tolling of the statute of 18 limitations. As petitioner acknowledges, other than his direct appeal, he has not filed any other 19 petitions, applications, or motions challenging his judgment of conviction in any court, state or 20 federal. Accordingly, by the time petitioner signed his original federal habeas petition and 21 submitted it for filing in federal court on June 27, 2011, more than one year had run on the statute 22 of limitations, rendering his federal habeas petition time-barred.1 23 ///// 24 ///// 25 1 26 Petitioner has presented no facts nor advanced any argument that would entitle him to equitable tolling of the statute of limitations. 4 1 OTHER MATTERS 2 Also pending before the court is petitioner’s motion for appointment of counsel. 3 The United States Supreme Court has ruled that district courts lack authority to require counsel 4 to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 5 296, 298 (1989). In certain exceptional circumstances, the district court may request the 6 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 7 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 8 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 9 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 10 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 11 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 12 common to most prisoners, such as lack of legal education and limited law library access, do not 13 establish exceptional circumstances that would warrant a request for voluntary assistance of 14 counsel. In the present case, the court does not find the required exceptional circumstances. 15 CONCLUSION 16 IT IS HEREBY ORDERED that: 17 1. Petitioner’s motion for appointment of counsel (Doc. No. 2) is denied; and 18 2. The Clerk of the Court is directed to randomly assign a United States District 19 Judge to this action. 20 IT IS HEREBY RECOMMENDED that: 21 1. Petitioner’s application for a writ of habeas corpus (Doc. No. 1) be dismissed 22 as barred by the statute of limitations; and 23 2. This action be closed. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 26 one days after being served with these findings and recommendations, petitioner may file written 5 1 objections with the court. The document should be captioned “Objections to Magistrate Judge's 2 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 In any objections he elects to file, petitioner may address whether a certificate of 6 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 7 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 8 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 9 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 10 appealability to review the denial of a habeas petition challenging an administrative decision 11 such as the denial of parole by the Board), overruled in part by Swarthout, 562 U.S. ___ , 131 S. 12 Ct. 859 (2011). 13 DATED: August 1, 2011. 14 15 16 DAD:9 zepe1757.156 17 18 19 20 21 22 23 24 25 26 6
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