(HC) Constancio v. Broomfield ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OSCAR M. CONSTANCIO, No. 2:22-CV-1277-DJC-DMC-P 12 Petitioner, FINDINGS AND RECOMMENDATIONS 13 v. 14 RON BROOMFIELD, 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 the petition as untimely, ECF No. 22. 20 21 I. BACKGROUND 22 Petitioner pleaded no contest to attempted second-degree murder and to personally 23 and intentionally discharging a firearm in the commission of the offense. See ECF No. 22, pg. 1. 24 Petitioner was sentenced to a determinate prison term of 25 years. See id. Petitioner’s direct 25 appeal was dismissed by the California Court of Appeal on June 9, 2009, because Petitioner had 26 not obtained a certificate of probable cause. See id. at 2. Petitioner did not seek direct review by 27 the California Supreme Court. See id. Petitioner filed one state post-conviction action in the 28 California Supreme Court on September 20, 2010. See id. That action was denied on April 13, 1 2011, with citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). See id. 2 The instant federal petition was filed on June 8, 2022. See ECF No. 1. 3 4 II. DISCUSSION 5 Federal habeas corpus petitions must be filed within one year from the later of: (1) 6 the date the state court judgment became final; (2) the date on which an impediment to filing 7 created by state action is removed; (3) the date on which a constitutional right is newly- 8 recognized and made retroactive on collateral review; or (4) the date on which the factual 9 predicate of the claim could have been discovered through the exercise of due diligence. See 28 10 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court 11 judgment becomes final by the conclusion of direct review or expiration of the time to seek direct 12 review. See 28 U.S.C. § 2244(d)(1). Where no petition for review by the California Supreme 13 Court is filed, the conviction becomes final 40 days following the Court of Appeal’s decision, 14 and the limitations period begins running the following day. See Smith v. Duncan, 297 F.3d 809 15 (9th Cir. 2002). 16 The limitations period is tolled, however, for the time a properly filed application 17 for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be 18 “properly filed,” the application must be authorized by, and in compliance with, state law. See 19 Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. 20 DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a 21 state’s timeliness bar, time limits for filing a state post-conviction petition are filing conditions 22 and the failure to comply with those time limits precludes a finding that the state petition is 23 properly filed). A state court application for post-conviction relief is “pending” during all the 24 time the petitioner is attempting, through proper use of state court procedures, to present his 25 claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered 26 “pending” after the state post-conviction process is concluded. See Lawrence v. Florida, 549 27 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari 28 petition to the Supreme Court was pending). Where the petitioner unreasonably delays between 1 state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 2 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as 3 untimely, the federal court must independently determine whether there was undue delay. See id. 4 at 226-27. 5 There is no tolling for the interval of time between post-conviction applications 6 where the petitioner is not moving to the next higher appellate level of review. See Nino, 183 7 F.3d at 1006-07; see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also no 8 tolling for the period between different sets of post-conviction applications. See Biggs v. 9 Duncan, 339 F.3d 1045 (9th Cir. 2003). Finally, the period between the conclusion of direct 10 review and the filing of a state post-conviction application does not toll the limitations 11 period. See Nino, 1983 F.3d at 1006-07. 12 Here, Petitioner did not seek review by the California Supreme Court 13 following the dismissal of his direct appeal by the California Court of Appeal on June 9, 14 2009. Thus, the conviction became final 40 days following the Court of Appeal’s decision – 15 July 19, 2009. The limitations period began to run the following day – July 20, 2009 – and, 16 absent tolling, expired on July 19, 2010. The single state court post-conviction action does 17 not entitle Petitioner to statutory tolling because it was filed on September 20, 2010, two 18 months after the one-year limitations period had already expired on July 19, 2010. The 19 Court agrees with Respondent that the instant federal petition must be dismissed as 20 untimely. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Ill. CONCLUSION 2 Based on the foregoing, the undersigned recommends as follows: 3 1. Respondent’s unopposed motion to dismiss, ECF No. 22, be GRANTED. 4 2. This action be DISMISSED as untimely. 5 These findings and recommendations are submitted to the United States District 6 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 7 || after being served with these findings and recommendations, any party may file written objections 8 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 9 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 10 Yist, 951 F.2d 1153 (9th Cir. 1991). 1] 12 | Dated: October 23, 2023 Ss..c0_, 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28