ORDER DENYING AS MOOT PETITIONER'S MOTION TO UPHOLD FIRST AMENDED PETITION

(ECF No. 27)

ORDER DIRECTING CLERK OF COURT TO MAIL COPIES OF FINDINGS AND RECOMMENDATION, ORDER ADOPTING, AND JUDGMENT TO PETITIONER AT NEW ADDRESS

LAWRENCE J. O'NEILL, Chief District Judge.

Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Petitioner's motion to uphold the first amended petition. (ECF No. 27). Therein, Petitioner claims that due to correctional officers' actions, Petitioner was unable to timely file the first amended petition and requests the Court to "accept the petition in its natural form and allow his first amended petition for writ of habeas corpus to proceed in the federal courts without any bias or neglect." (ECF No. 27 at 2).1

On December 13, 2018, the Court granted Petitioner leave to file an amended petition within sixty days. (ECF No. 16). On January 25, 2019, the Court received the first amended petition ("FAP") in a timely manner. (ECF No. 20). On January 29, 2019, the Court ordered Respondent to file a response to the FAP. (ECF No. 21). On March 29, 2019, Respondent filed a motion to dismiss the FAP. (ECF No. 22).

On May 8, 2019, the Magistrate Judge issued findings and recommendation to dismiss the FAP as untimely because it was filed after the statute of limitations had expired on June 15, 2012. (ECF No. 24). This findings and recommendation was served on Petitioner and contained notice that any objections were to be filed within thirty (30) days of the date of service of that order. On May 28, 2019, the findings and recommendation was returned as undeliverable. Absent notice of a party's change of address, service of documents at the prior address of the party is fully effective. Local Rule 182(f).

On August 15, 2019, the Court adopted the findings and recommendation and dismissed the petition. (ECF No. 25). That same day, the judgment was entered. (ECF No. 26).

As set forth above, the FAP was timely filed and allowed to proceed in this matter. Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.

BACKGROUND

On June 26, 2007, Petitioner pleaded guilty in the Tulare County Superior Court to two counts of attempted murder. Petitioner was sentenced to an imprisonment term of thirty-nine years and four months. (LD2 1). On May 6, 2011, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2). Petitioner did not seek review in the California Supreme Court. Petitioner subsequently filed five state post-conviction collateral challenges, which were all denied. (LDs 3-12).

On May 21, 2018,3 Petitioner constructively filed a federal petition for writ of habeas corpus. (ECF No. 1). On December 12, 2018, the Court dismissed the petition due to Petitioner's failure to sign the petition under penalty of perjury. The Court granted Petitioner leave to file an amended petition. (ECF No. 16).

On January 22, 2019, Petitioner constructively filed the first amended petition. (ECF No. 20). On March 29, 2019, Respondent filed a motion to dismiss the first amended petition as untimely, or in the alternative to dismiss because ground two is unexhausted and ground one is not a cognizable federal claim. (ECF No. 22). Petitioner has not filed an opposition to the motion to dismiss, and the time for doing so has passed.

II.

DISCUSSION

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The first amended petition was filed after the enactment of AEDPA and is therefore governed by its provisions.

AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides:

28 U.S.C. § 2244(d).

A. Commencement of Limitation Period

In most cases, the limitation period begins running on the date that the petitioner's direct review became final or the expiration of the time for seeking such review. In his first claim, Petitioner seeks relief based on People v. Rodriguez, 47 Cal.4th 501 (Cal. 2009), and People v. Le, 61 Cal.4th 416 (Cal. 2015). (ECF No. 1 at 4).4 Accordingly, the Court will determine whether § 2244(d)(1)(B)-(D) are applicable and entitle Petitioner to a later commencement of the limitation period.

Section 2244(d)(1)(B) provides that the one-year limitation period begins to run from the date on which a state-created impediment, in violation of the Constitution or laws of the United States, is removed. 28 U.S.C. § 2244(d)(1)(B). The Ninth Circuit has held that a state court decision announcing a new interpretation or clarification of state law does not constitute a state-created impediment under § 2244(d)(1)(B). Shannon v. Newland, 410 F.3d 1083, 1087-88 (9th Cir. 2005). Thus, Rodriguez and Le are not a state-created impediment, and § 2244(d)(1)(B) is inapplicable.

Section 2244(d)(1)(C) provides that the one-year limitation period begins to run from the date on which a "newly recognized" constitutional right, made retroactively applicable to cases on collateral review, was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C). Rodriguez held that California Penal Code section 1170.1(f) bars the imposition of both a firearm enhancement under section 12022.5(a)(1) and a gang enhancement under section 186.22(b)(1)(C) in connection with a single offense. Rodriguez, 47 Cal. 4th at 508. Le held that California Penal Code section 1170.1(f) bars the imposition of both a firearm enhancement under section 12022.5(a)(1) and a gang enhancement under section 186.22(b)(1)(B) in connection with a single offense, when the offense qualifies as a serious felony solely because it involved firearm use. Le, 61 Cal. 4th at 429. Rodriguez and Le are California Supreme Court cases that concerned the interpretation of a California state statute, and thus, did not involve newly recognized constitutional rights made retroactively applicable to cases on collateral review by the United States Supreme Court. Accordingly, § 2244(d)(1)(C) is inapplicable.

Section 2244(d)(1)(D) provides that the one-year limitation period begins to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). The Ninth Circuit has held that a state court decision announcing a new interpretation or clarification of state law does not constitutes a "factual predicate" under § 2244(d)(1)(D). Shannon, 410 F.3d at 1089. Accordingly, § 2244(d)(1)(D) is inapplicable.

Based on the foregoing, § 2244(d)(1)(A) is applicable in the instant case and the limitation period began running on the date that Petitioner's direct review became final. Here, as Petitioner did not appeal to the California Supreme Court, his judgment became final when his time for seeking review with the state's highest court expired. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The time to seek review with the California Supreme Court expired on June 15, 2011, forty days after the Court of Appeal's decision was filed. See Cal. R. Ct. 8.366(b)(1) ("[A] Court of Appeal decision . . . is final in that court 30 days after filing."); Cal. R. Ct. 8.500(e)(1) ("A petition for review must be . . . filed within 10 days after the Court of Appeal decision is final in that court."). The one-year limitation period commenced running the following day, June 16, 2011, and absent tolling, was set to expire on June 15, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (citing Fed. R. Civ. P. 6(a)).

B. Statutory Tolling

The "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one-year limitation period. 28 U.S.C. § 2244(d)(2). In the instant case, the limitation period expired before Petitioner filed his first state post-conviction collateral challenge on March 16, 2017, and § 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed." Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, the instant federal petition is untimely unless Petitioner establishes that equitable tolling is warranted.

C. Equitable Tolling

The limitations period also is subject to equitable tolling if the petitioner demonstrates "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of alleging facts that would give rise to tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. Here, however, Petitioner has not made any showing that he is entitled to equitable tolling. Indeed, Petitioner failed to oppose this motion to dismiss in any way.

Based on the foregoing, the instant federal petition was not timely filed, and dismissal is warranted on this ground.5

III.

RECOMMENDATION

Accordingly, IT IS HEREBY RECOMMENDED that:

Further, the Clerk of Court is DIRECTED to substitute David Baughman as Respondent in this matter.

This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within THIRTY (30) days after service of the Findings and Recommendation, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within fourteen (14) days after service of the objections. The assigned United States District Court Judge will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 8, 2019, the Magistrate Judge issued Findings and Recommendation that recommended granting Respondent's motion to dismiss and dismissing the first amended petition for writ of habeas corpus as untimely. (ECF No. 24). This Findings and Recommendation was served on Petitioner and contained notice that any objections were to be filed within thirty (30) days of the date of service of that order. On May 28, 2019, the Findings and Recommendation was returned as undeliverable.1 To date, no objections have been filed, and the time for doing so has passed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Findings and Recommendation is supported by the record and proper analysis.

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

If a court denies habeas relief on procedural grounds without reaching the underlying constitutional claims, the court should issue a certificate of appealability "if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.

In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner's federal habeas corpus petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.

JUDGMENT IN A CIVIL CASE

XX — Decision by the Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED IN ACCORDANCE WITH THE COURT'S ORDER FILED ON 8/15/19