(HC) Juarez v. Jones ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS JUAREZ, No. 2:22-CV-1680-WBS-DMC-P 12 Petitioner, FINDINGS AND RECOMMENDATIONS 13 v. 14 GENA JONES, 15 Respondent. 16 17 Petitioner, a prisoner proceeding pro se, brings this petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254. Pending before the Court is Respondent’s unopposed motion to 19 dismiss, ECF No. 15, arguing this petition must be dismissed as untimely. Respondent has lodged 20 relevant state court records in support of the motion, ECF No. 16. 21 On January 11, 2017, Petitioner entered a plea of no contest to felony criminal 22 charges of assault with a firearm, evading a police officer, and a great bodily injury enhancement, 23 and was sentenced by the Sacramento County Superior Court on March 3, 2017, to a determinate 24 prison term of eight years and eight months. See ECF No. 16-1 (abstract of judgment and 25 minutes from plea hearing). Petitioner did not appeal and did not file any state court post- 26 conviction actions. The instant federal habeas petition was filed on September 23, 2022. See 27 ECF No. 1. 28 / / / 1 Federal habeas corpus petitions must be filed within one year from the later of: (1) 2 the date the state court judgment became final; (2) the date on which an impediment to filing 3 created by state action is removed; (3) the date on which a constitutional right is newly- 4 recognized and made retroactive on collateral review; or (4) the date on which the factual 5 predicate of the claim could have been discovered through the exercise of due diligence. See 28 6 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court 7 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 8 review. See 28 U.S.C. § 2244(d)(1). If, as here, no direct appeal is filed in the California Court 9 of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial 10 court, and the limitations period begins running the following day. See Cal. Rule of Court 11 8.308(a). The limitations period is tolled, however, for the time a properly filed application for 12 post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). 13 Here, Petitioner did not appeal the conviction and sentence. Thus, Petitioner’s 14 conviction became final 60 days after his sentencing on March 3, 2017, or on May 2, 2017. The 15 limitations period began to run the following day – May 3, 2017. Because he did not file any 16 state court post-conviction actions, Petitioner is not entitled to statutory tolling and the one-year 17 limitations period ended on May 3, 2018. The instant federal petition, which was filed over four 18 years after this date on September 23, 2022, is untimely and must be dismissed. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Based on the foregoing, the undersigned recommends that Respondent’s 2 || unopposed motion to dismiss, ECF No. 15, be granted and that this action be dismissed as 3 | untimely. 4 These findings and recommendations are submitted to the United States District 5 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 6 || after being served with these findings and recommendations, any party may file written objections 7 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 || Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 | Dated: June 15, 2023 Ss..c0_, DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28