1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHRYN ANN ELLIS, Case No. 1:19-cv-200-NONE-JDP (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS TO DENY MOTION

13 v. TO DISMISS 14 WARDEN OF CENTRAL CALIFORNIA (Doc. No. 24)

WOMEN’S FACILITY,

15 Respondent. 16

17 18 19 Petitioner Kathryn Ann Ellis, a state prisoner, brought this petition for writ of habeas 20 corpus under 28 U.S.C. § 2254 through counsel on February 12, 2019. (Doc. No. 1.) Petitioner 21 was sentenced to life without the possibility of parole in the Fresno County Superior Court on 22 September 25, 2013, after she was convicted of first-degree murder of her husband. (Id. at ¶ 1.) 23 Petitioner now seeks to overturn her state court conviction on the ground that she was not 24 afforded effective assistance of counsel. (Doc. No. 6 at 1.) On July 19, 2019, respondent moved 25 to dismiss the habeas petition as untimely under 28 U.S.C. § 2244(d). (Doc. No. 11 at 3.) 26 Petitioner opposed that motion on August 7, 2019, and respondent filed a reply and sur-reply on 27 September 9, 2019 and February 11, 2020, respectively. (Doc. Nos. 13, 17, 23.) 28 ///// 1 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 2 § 636(b)(1)(B) and Local Rule 302. On March 13, 2020, the assigned magistrate judge issued 3 findings and recommendations, recommending that respondent’s motion to dismiss be denied. 4 (Doc. No. 24.) “Under AEDPA, state prisoners have a one-year statutory period to file a federal 5 application for writ of habeas corpus.” Grant v. Swarthout, 862 F.3d 914, 917–18 (9th Cir. 2017) 6 (citing § 2244(d)(1)). Here, the pending findings and recommendations expressed frustration 7 with respondent’s failure to at all address the legal standard to be applied in analyzing the motion 8 to dismiss. (Doc. No. 24 at 2–3.) The undersigned interprets this frustration as stemming, at least 9 in part, from the fact that both respondent and petitioner appeared to have relied upon evidence 10 outside of the petition and its attachments in presenting their arguments as to why statutory or 11 equitable tolling of the statute of limitations was or was not appropriate in this case. Given this 12 lack of briefing or focus by either party, the magistrate judge indicated the court would “assume 13 that the motion should be analyzed under habeas Rule 4” of the Rules Governing § 2254 Cases1 14 Applying Rule 4, the magistrate judge reasoned that it was not “plainly apparent” that the one- 15 year statute of limitations had expired prior to the filing of the pending petition because statutory 16 and equitable tolling may be applicable in this case. (Id. at 5-12.) 17 On March 26, 2020, respondent filed objections to the pending findings and 18 recommendations, contending that the magistrate judge applied an incorrect legal standard and 19 reached the wrong the conclusion. (Doc. No. 25 at 1-2.) Petitioner then filed a response thereto 20 on April 2, 2020. (Doc. No. 27.) Pursuant to 28 U.S.C. § 636 (b)(1)(C), the court has conducted 21 a de novo review of the case, including the objections and the response thereto. For the reasons 22 set forth below, the recommendation that respondent’s motion to dismiss be denied will be 23 adopted. 24 The undersigned interprets the pending findings and recommendations simply as 25 recommending denial of the motion to dismiss without prejudice. Interpreted as such, that 26

27 1 Habeas Rule 4 states in pertinent part: “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the 28 wOAOe UVM CU IN IN VR MVOC OO PO vee OY VV

1 || recommendation will be adopted. The findings and recommendations reasonably concluded, 2 | based on the record before the magistrate judge, that respondent had failed to adequately present 3 | and brief its motion to dismiss. Among other things, the record suggested that attorney error was 4 | apossible ground for equitable tolling, but the issue was insufficiently explored. (See Doc. No. 5 | 24 at 8-10.) Respondent is free to file another, properly supported motion addressing the 6 | applicable legal standards and proposing how any factual disputes with respect to the applicability 7 | of equitable tolling should be resolved by the court, particularly in light of the nature of the 8 | possible grounds for equitable tolling that appear plausible in this case. Petitioner should feel 9 | compelled to respond to any such future motion in kind. In short, it is not the court’s job to do the 10 | work of the lawyers for both parties. 11 Accordingly: 12 1. The recommendation set forth in the findings and recommendations issued on 13 March 13, 2020 (Doc. No. 24) is adopted, however in lieu of an answer, 14 respondent may file an appropriately supported motion consistent with the 15 instructions provided above; and 16 2. Respondent’s motion to dismiss (Doc. No. 11) is denied without prejudice. 17 18 IT IS SO ORDERED. ~ ‘ae 19 Dated: _ June 2, 2020 wae os —

UNITED STATES DISTRICT JUDGE

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