(HC) Vo v. Arnold, No. 2:2016cv00529 - Document 17 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 08/10/16 recommending that respondent's motion to dismiss 9 be granted. Petitioner's petition for a writ of habeas corpus be dismissed as time barred; and this case be closed. MOTION to DISMISS 9 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIEN MINH VO, 12 Petitioner, 13 14 No. 2:16-cv-0529 KJM CKD P v. FINDINGS AND RECOMMENDATIONS E. ARNOLD, 15 Respondent. 16 17 Petitioner, a California prisoner proceeding pro se, has filed a petition for writ of habeas 18 corpus under 28 U.S.C. § 2254. He is serving a total sentence of 72 years and 4 months-to-life 19 imprisonment imposed in 1996 in the Superior Court of Sacramento County for first degree 20 murder and other crimes. Petitioner raises a single claim: that his sentence violates the Eighth 21 Amendment because he was a juvenile when he was convicted. Respondent has filed a motion to 22 dismiss arguing that petitioner’s claim is time-barred. Petitioner asserts his claim arises from the United States Supreme Court’s June 25, 2012 23 24 decision in Miller v. Alabama, 132 S. Ct. 2455 (2012). Assuming that is in fact the case, the one 25 year limitations period applicable to this action began running, at the latest, the next day. See 28 26 U.S.C. § 2244(d)(1)(C) (commencement of the one year limitation period applicable to habeas 27 claims brought by state prisoners can be delayed until the date the Supreme Court recognizes the 28 ///// 1 1 Constitutional right forming the basis of the claim).1 The limitations period then ran out one year 2 later on June 25, 2013, well before petitioner commenced this action earlier this year. Because 3 petitioner fails to point to any basis for tolling the limitations period between June 26, 2012 and 4 June 25, 2013, petitioner’s petition for writ of habeas corpus must be dismissed as time-barred. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Respondent’s motion to dismiss (ECF No. 9) be granted; 7 2. Petitioner’s petition for a writ of habeas corpus be dismissed as time-barred; and 8 3. This case be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 14 may address whether a certificate of appealability should issue in the event he files an appeal of 15 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 16 court must issue or deny a certificate of appealability when it enters a final order adverse to the 17 applicant). Any response to the objections shall be served and filed within fourteen days after 18 service of the objections. The parties are advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 Dated: August 10, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 1 vo0529.sol 1 26 27 28 In Dodd v. U.S., 545 U.S. 353, 356-60 (2005), the Supreme Court made clear that to the extent the limitations period does not begin to run until a Constitutional right is recognized by the Supreme Court, it is the issuance of the decision which recognizes the right which triggers the running of the limitations period, not the date the Supreme Court finds the right retroactively applicable to cases on collateral review. 2

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