(HC) Jimenez v. Tampkins ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RICHARD JIMENEZ, Case No. 1:19-cv-00187-NONE-JDP 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 12 v. PETITION AND GRANTING MOTION TO DISMISS 13 TAMPKINS, (Doc. Nos. 11 & 20) 14 Respondent. 15 16 Petitioner Richard Jimenez, a state prisoner proceeding without counsel, brought this 17 petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the sentence imposed upon 18 him by the Fresno County Superior Court on July 29, 2014, in his underlying criminal case. 19 Therein, petitioner asserts that he was subjected to an “illegal enhancement” and received 20 ineffective assistance of counsel. (Doc. No. 1 at 1, 3.) This matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 Contending that the pending petition is time-barred under the Antiterrorism and Effective 23 Death Penalty Act of 1996 (“AEDPA”) and that petitioner failed to exhaust his claims before 24 seeking federal habeas relief, respondent moved to dismiss the petition on July 12, 2019. (Doc. 25 No. 11.) Petitioner filed his opposition to that motion on September 20, 2019, arguing the merits 26 of his petition without addressing either the timeliness or exhaustion arguments presented by 27 respondent in moving to dismiss the petition. (Doc. No. 16.) Respondent replied on September 28 27, 2019. (Doc. No. 17.) 1 On February 18, 2020, the assigned magistrate judge issued findings and 2 recommendations recommending that this court grant respondent’s motion to dismiss on the 3 ground of untimeliness and without addressing exhaustion of the claims in state court. (Doc. No. 4 20.) The findings and recommendations were served on petitioner and contained notice that 5 objections were due within fourteen (14) days. (Id.) The time for filing objections has passed 6 and petitioner has failed to do so. 7 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 8 court has conducted a de novo review of this case.1 The issue now before the undersigned is 9 whether this petition was timely brought under AEDPA, 28 U.S.C. §§ 2244(d)(1)-(2). Having 10 carefully reviewed the entire record, the court finds the pending petition for federal habeas relief 11 to be untimely filed and will adopt the findings and recommendations. 12 Under the § 2244(d)(1), “a state prisoner must file his federal habeas corpus petition 13 within one year of the date his state conviction became final.” White v. Klitzkie, 281 F.3d 920, 14 923 (9th Cir. 2002) (quoting 28 U.S.C. § 2244(d)(1)). Under § 2244(d)(1)(A), plaintiff’s 15 conviction became final on June 11, 2016, and one year after that was June 11, 2017. (Doc. No. 16 20 at 3.) But ascertaining the running of the one-year statute of limitations does not end the 17 inquiry. “[T]he question of when a conviction becomes final, so as to start the running of the 18 statute of limitations under § 2244(d)(1)(A), is fundamentally different from the question of how 19 long the statute of limitations is tolled under § 2244(d)(2).” White, 281 F.3d at 924 (citations 20 omitted). Thus, the next inquiry is whether the applicable one-year time limitation was tolled so 21 as to make petitioner’s filing of his petition in this case on February 11, 2019, timely. In this 22 23 1 Having reviewed the records, the court notes that petitioner had litigated and appealed the two issues in this case—“illegal enhancement” and ineffective assistance of counsel—in seven 24 different actions he has filed in state court before bringing this federal habeas action. The state court had found the two issues raised by petitioner to be meritless. (Doc. Nos. 12-2 at 5 25 (affirming the trial court’s denial of a Marsden motion because “the record overwhelmingly 26 supports the trial court’s conclusion”); 12-6 at 2 (finding that petitioner had executed “a valid change of plead form”); 12-16 at 1 (denying petitioner’s writ of habeas corpus because it “will 27 not entertain habeas corpus claims that could have been, but not raised, on appeal”); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (holding that “[f]actual determinations by state 28 courts are presumed correct absent clear and convincing evidence to the contrary”) (citing 28 1 regard, petitioner filed his application for federal habeas relief with this federal court 976 days 2 after June 11, 2016. Pursuant to AEDPA, the one-year time limitation is tolled “while a properly 3 filed state habeas petition is pending in state court”; a petition “is ‘pending’ as long as the 4 ordinary state collateral review process continues.” Valdez v. Montgomery, 918 F.3d 687, 690 5 (9th Cir. 2019) (citation omitted). Here, the pending findings and recommendations painstakingly 6 and correctly detailed the tolling calculation stemming from each of petitioner’s seven state 7 habeas actions, beginning with the first postconviction application in state court on March 16, 8 2015 to the last, the November 21, 2017 denial of a petition for review by the California Supreme 9 Court. (Doc. No. 20 at 3-5.) The undersigned need not repeat that review here. Ultimately, 10 however, even if petitioner’s one-year time limitation for the filing of his application for federal 11 habeas relief was tolled until November 21, 2017, the instant petition was still untimely filed 12 because it was not submitted until February 11, 2019—or 447 days after the statute of limitations 13 had expired. (Id. at 5.) 14 The magistrate judge also considered whether petitioner might be entitled to equitable 15 tolling of the statute of limitations. To be entitled to equitable tolling, a petitioner must show “(1) 16 that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 17 in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted). The court agrees 18 with the conclusion reached in the pending findings and recommendations that petitioner “has not 19 identified any extraordinary circumstances that prevented him from filing his action within the statute 20 of limitations.” (Doc. No. 20 at 5.) Without equitable tolling, the pending petition is time-barred 21 under § 2244(d)(1) despite application of statutory tolling under § 2244(d)(2). 22 Having found petitioner is not entitled to habeas relief, the court now turns to whether a 23 certificate of appealability should be issued. A prisoner seeking a writ of habeas corpus has no 24 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 25 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 26 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 27 court issue or deny a certificate of appealability when entering a final order adverse to a 28 petitioner. See also Ninth Circuit Rule 22-1(a). 1 If, as here, a court grants a motion to dismiss a petition for a writ of habeas corpus, the 2 | court may only issue a certificate of appealability when “the applicant has made a substantial 3 | showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial 4 | showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that 5 | matter, agree that) the petition should have been resolved in a different manner or that the issues 6 || presented were ‘adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 7 | U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 8 In the present case, the court concludes that petitioner has not made the required 9 | substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 10 | appealability. Reasonable jurists would not find the court’s determination that petitioner is not 11 | entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 12 | petitioner is deserving of encouragement to proceed further. Cf. Engle v. Isaac, 456 U.S. 107, 13 | 126-27 (1982) (recognizing that a writ of habeas corpus “entails significant costs” and 14 | “[cJollateral review of a conviction extends the ordeal of trial for both society and the accused”). 15 | The court therefore declines to issue a certificate of appealability. 16 Accordingly: 17 1. The findings and recommendations issued on February 18, 2020 (Doc. No. 20) are 18 adopted in full; 19 2. Respondent’s motion to dismiss the petition for writ of habeas corpus (Doc. No. 20 11) is granted; 21 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed; 22 4. The court declines to issue a certificate of appealability; and 23 5. The Clerk of Court is directed to assign a district judge to this case for the 24 purposes of closure and to close this case. 25 | IT IS SO ORDERED. me □ Dated: _ April 2, 2020 aL Al 7 ye 27 UNITED STATES DISTRICT JUDGE 28