Opinion
2:22-CV-1680-WBS-DMC-P
06-15-2023
CARLOS JUAREZ, Petitioner, v. GENA JONES, Respondent.
FINDINGS AND RECOMMENDATIONS
DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pending before the Court is Respondent's unopposed motion to dismiss, ECF No. 15, arguing this petition must be dismissed as untimely. Respondent has lodged relevant state court records in support of the motion, ECF No. 16.
On January 11, 2017, Petitioner entered a plea of no contest to felony criminal charges of assault with a firearm, evading a police officer, and a great bodily injury enhancement, and was sentenced by the Sacramento County Superior Court on March 3, 2017, to a determinate prison term of eight years and eight months. See ECF No. 16-1 (abstract of judgment and minutes from plea hearing). Petitioner did not appeal and did not file any state court post-conviction actions. The instant federal habeas petition was filed on September 23, 2022. See ECF No. 1.
Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1). If, as here, no direct appeal is filed in the California Court of Appeal, the conviction becomes final 60 days after conclusion of proceedings in the state trial court, and the limitations period begins running the following day. See Cal. Rule of Court 8.308(a). The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2).
Here, Petitioner did not appeal the conviction and sentence. Thus, Petitioner's conviction became final 60 days after his sentencing on March 3, 2017, or on May 2, 2017. The limitations period began to run the following day - May 3, 2017. Because he did not file any state court post-conviction actions, Petitioner is not entitled to statutory tolling and the one-year limitations period ended on May 3, 2018. The instant federal petition, which was filed over four years after this date on September 23, 2022, is untimely and must be dismissed.
Based on the foregoing, the undersigned recommends that Respondent's unopposed motion to dismiss, ECF No. 15, be granted and that this action be dismissed as untimely.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).