(HC) Lopez v. Godwin ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE MEJIA LOPEZ, No. 1:22-cv-00735-ADA-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT 13 MOTION TO DISMISS WRIT OF HABEAS CORPUS 14 v. (ECF Nos. 13, 15) 15 ORDER DIRECTING CLERK OF COURT TO 16 ENTER JUDGMENT AND CLOSE CASE TRISTAN LEMON, Warden, AND DECLINING TO ISSUE CERTIFICATE 17 OF APPEALABILITY Respondent. 18 19 Petitioner Jorge Mejia Lopez is a state prisoner proceeding pro se and in forma pauperis 20 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred 21 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On November 8, 2022, the Magistrate Judge issued findings and recommendations to 23 grant respondent’s motion to dismiss the petition. (ECF Nos. 13, 15.) Petitioner filed objections 24 on January 12, 2023. (ECF No. 18.) 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a 26 de novo review of the case. Having carefully reviewed the entire file, including petitioner's 27 objections, the Court concludes that the Magistrate Judge’s findings and recommendations are 28 supported by the record and proper analysis. In his objections, Petitioner states he was 1 misinformed that he had one year to file his petition from the date the California Supreme Court 2 denied his state post-conviction petition. (ECF No. 18 at 1.) Ignorance or confusion concerning 3 the law, however, do not excuse an untimely filing. See Rasberry v. Garcia, 448 F.3d 1150, 1154 4 (9th Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an 5 extraordinary circumstance warranting equitable tolling.”); Herrera v. Butler, No. C03-4333 6 VRW(PR), 2004 WL 1729927, at *2 (N.D. Cal. Jul. 22, 2004), aff'd, 184 F. App’x 648 (9th Cir. 7 2006). In addition, erroneous advice from fellow inmates is not uncommon and does not 8 constitute an extraordinary circumstance. See Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 9 2010) (reliance on inmate law clerk to prepare and file habeas petitions did not warrant equitable 10 tolling); Wallace v. Mahanoy, 2 F.4th 133, 150 (3d Cir. 2021) (rejecting petitioner's claim that he 11 relied on the mistaken advice of a fellow inmate in reaching the incorrect conclusion that filing 12 state postconviction relief proceedings would reset the federal deadlines); cf. Tacho v. Martinez, 13 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner’s reliance on mistaken advice from jailhouse 14 lawyers did not constitute cause for procedural default). Thus, petitioner is not entitled to 15 equitable tolling. 16 In addition, the court declines to issue a certificate of appealability. A state prisoner 17 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 18 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 19 U.S. 322, 335-336 (2003). Upon denial of a petition, the court may only issue a certificate of 20 appealability when the petitioner makes a substantial showing of the denial of a constitutional 21 right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 22 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 23 been resolved in a different manner or that the issues presented were ‘adequate to deserve 24 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 25 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 26 In the present case, the Court finds that Petitioner has not made the required substantial 27 showing of the denial of a constitutional right to justify the issuance of a certificate of 28 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not 1 | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 2 | proceed further. Thus, the Court declines to issue a certificate of appealability. 3 Accordingly, 4 1. The findings and recommendations issued on November 8, 2022, (ECF No. 15), 5 are adopted in full; 6 2. Respondent’s motion to dismiss, (ECF No. 13), is granted; 7 3. The petition for writ of habeas corpus is dismissed with prejudice; 8 4. The Clerk of Court is directed to enter judgment and close the case; and 9 5. The Court declines to issue a certificate of appealability. 10 11 12 | TIS SO ORDERED. 13 Dated: _ February 14, 2023 4 UNITED fTATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28