(HC) Rivera v. Ndoh ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EFRAIN ARMENTA RIVERA, Case No. 1:19-cv-01725-AWI-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 12 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS 13 ROSEMARY NDOH, (ECF No. 6) 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND 20 On September 26, 2013, Petitioner was convicted by a jury in the Fresno County Superior 21 Court of multiple counts of sexual assault by sodomy against a child, forcible sodomy against a 22 minor, and having contact or communication with a minor with the intent to commit a sexual 23 offense. On October 25, 2013, Petitioner was sentenced to an imprisonment term of 180 years to 24 life, plus 17 years. (LDs1 1, 2). On November 13, 2015, the California Court of Appeal, Fifth 25 Appellate District affirmed the judgment. (LD 2). On January 20, 2016, the California Supreme 26 Court denied the petition for review. (LDs 3, 4). On July 4, 2019,2 Petitioner constructively filed 27 1 “LD” refers to the documents electronically filed by Respondent on February 6, 2020. (ECF No. 8). 2 Pursuant to the mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . to the 1 a state habeas petition in the California Supreme Court, which denied the petition on October 30, 2 2019. (LDs 5, 6). 3 On December 8, 2019, Petitioner constructively filed the instant federal petition for writ 4 of habeas corpus. (ECF No. 1). On February 6, 2020, Respondent filed a motion to dismiss the 5 petition as untimely. (ECF No. 6). To date, no opposition to the motion to dismiss has been filed, 6 and the time for doing so has passed. 7 II. 8 DISCUSSION 9 A. Statute of Limitations 10 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 11 of 1996 (“AEDPA”). AEDPA imposes various requirements on all petitions for writ of habeas 12 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. 13 Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the 14 enactment of AEDPA and is therefore governed by its provisions. 15 AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal 16 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides: 17 (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 18 judgment of a State court. The limitation period shall run from the latest of – 19 (A) the date on which the judgment became final by the 20 conclusion of direct review or the expiration of the time for seeking such review; 21 (B) the date on which the impediment to filing an application 22 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented 23 from filing by such State action; 24 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 25 newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 26 27 (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to both federal and state habeas petitions. Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 1 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 2 exercise of due diligence. 3 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the 4 pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 5 6 28 U.S.C. § 2244(d). 7 In most cases, the limitation period begins running on the date that the petitioner’s direct 8 review became final or the expiration of the time for seeking such review. Here, the judgment 9 became final on April 19, 2016, when the ninety-day period to file a petition for writ of certiorari 10 in the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 11 1999). The one-year limitation period commenced running the following day, April 20, 2016, 12 and absent tolling, was set to expire on April 19, 2017. See Patterson v. Stewart, 251 F.3d 1243, 13 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)). 14 B. Statutory Tolling 15 The “time during which a properly filed application for State post-conviction or other 16 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 17 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). In the instant case, the limitation 18 period expired before Petitioner constructively filed his first and only state habeas petition on 19 July 4, 2019, and § 2244(d) “does not permit the reinitiation of the limitations period that has 20 ended before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 21 2003). Accordingly, the instant federal petition is untimely unless Petitioner establishes that 22 equitable tolling is warranted. 23 C. Equitable Tolling 24 The limitations period also is subject to equitable tolling if the petitioner demonstrates 25 “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary 26 circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 27 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of alleging facts that would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. 1 | Here, however, Petitioner has not made any showing that he is entitled to equitable tolling. 2 | Indeed, Petitioner failed to oppose this motion to dismiss in any way. Therefore, the instant 3 | federal petition was not timely filed, and dismissal is warranted on this ground. 4 Il. 5 RECOMMENDATION 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Respondent’s motion to dismiss (ECF No. 6) be GRANTED; and 8 2. The petition for writ of habeas corpus be DISMISSED as untimely. 9 This Findings and Recommendation is submitted to the assigned United States District 10 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 | Rules of Practice for the United States District Court, Eastern District of California. Within 12 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 13 | written objections with the court and serve a copy on all parties. Such a document should be 14 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 15 | objections shall be served and filed within fourteen (14) days after service of the objections. The 16 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 17 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 18 | the specified time may waive the right to appeal the District Court’s order. Wilkerson_v. 19 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 20 | Cir. 1991)). 21 IT IS SO ORDERED. OF. nf ee 23 | Dated: _March 26, 2020_ ef UNITED STATES MAGISTRATE JUDGE 25 26 27 28