1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CANDELARIO VARGAS, No. 1:21-cv-00655-ADA-SAB (HC) 12 Petitioner, ORDER REFERRING MATTER BACK TO

THE MAGISTRATE JUDGE FOR

13 v. AMENDED FINDINGS AND

RECOMMENDATIONS

14 JAMES ROBERTSON, (ECF Nos. 12, 22) 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 25, 2022, the assigned Magistrate Judge issued findings and recommendations 21 that recommended granting Respondent’s motion to dismiss and dismissing the petition as 22 untimely. (ECF No. 22.) The findings and recommendations were served on Petitioner and 23 contained notice that any objections were to be filed within thirty days of the date of service of 24 the findings and recommendations. On February 22, 2022, Petitioner filed timely objections. 25 (ECF No. 24.) 26 The Court agrees with the Magistrate Judge that 28 U.S.C. § 2244(d)(1)(D) governs the 27 determination of the applicable statute of limitations in this case. (See ECF No. 22 at 4.) The 28 Court disagrees, however, that the factual predicate triggering the statute of limitations occurred 1 on November 6, 2018, the date on which the state court mailed notice to the California 2 Department of Corrections and Rehabilitation (CDCR) that it would decline to resentence 3 Petitioner. Section 2244(d)(1)(D) states that the statute of limitations shall run from “the date on 4 which the factual predicate of the claim or claims presented could have been discovered through 5 the exercise of due diligence.” As the Magistrate Judge observes, “the trial court declined to 6 recall Petitioner’s sentence and resentence him . . . without notice, Petitioner’s appearance, the 7 assistance of counsel, and the opportunity to appeal.” (ECF No. 22 at 4.) Respondent lodged 8 copies of two letters concerning the trial court’s decision: (1) a letter, dated July 9, 2018, from 9 CDCR providing the Tulare County Superior Court with authority to resentence petitioner; and 10 (2) a letter, dated November 6, 2018, from the Tulare County Superior Court to CDCR declining 11 to resentence petitioner. (LD 9, 10.) There is no indication that Petitioner received a copy of 12 either letter. Additionally, both parties provided copies of Petitioner’s 2020 state court habeas 13 corpus filings. (See ECF No. 1 at 17–63; LD 4, 6.) In those filings, Petitioner’s attorney notes 14 that Petitioner never received information about either the CDCR letter or the Tulare County 15 Superior Court denial. (LD 4 at 12–13; LD 6 at 10.) It appears from the language in the briefs 16 that Petitioner’s attorney also filed a declaration from Petitioner verifying this information, 17 though neither party included that declaration in their own exhibits. Id. 18 The Magistrate Judge and Respondent draw an inference, not unreasonably, between 19 Petitioner’s request on November 18, 2018 for resentencing and his knowledge of the 20 proceedings that occurred in Tulare County Superior Court resulting in the November 6, 2018 21 letter to CDCR. (See ECF No. 22 at 5–6.) Such a connection, however, is not necessarily 22 warranted. Petitioner’s 2018 petition simply seeks resentencing based on the trial court’s alleged 23 violation of Penal Code section 1170.1(g). (LD 2 at 3.) It makes no mention of the trial court’s 24 decision regarding CDCR’s letter. In denying the petition, the Tulare County Superior Court 25 similarly made no mention of any prior proceedings regarding Petitioner’s sentence. Given the 26 circumstances, the undersigned does not believe Petitioner could have discovered the factual 27 predicate for his habeas claim – the denial of resentencing following an unnoticed 2018 hearing 28 where Petitioner was not present – through the exercise of due diligence on the very date of the 1 trial court’s denial. There is no evidence that Petitioner received any notice or other form of 2 communication about the hearing. Further, there is no reason that Petitioner would have thought 3 to seek out this information if he had no knowledge that the hearing had even occurred. 4 As the Magistrate Judge noted, Petitioner, with the assistance of counsel, filed a state 5 habeas petition on February 20, 2020. Both the Court of Appeal and California Supreme Court 6 summarily denied the petition. Subsequently, 265 days passed before Petitioner filed this action 7 in federal court. Petitioner’s first state habeas petition asserts that he filed that petition with 8 reasonable diligence after discovering the fact that the trial court had held a resentencing hearing 9 without Petitioner present. (LD 4 at 13–14.) The question then becomes: on what date could 10 Petitioner have learned of the factual predicate? If it was within 100 days of filing his initial state 11 court habeas petition, Petitioner would not be subject to the statute of limitations bar. 12 The court notes that it is Petitioner’s burden to prove that his petition is not barred by the 13 statute of limitations. Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010). Due to the lack of 14 clarity regarding the date on which the statute of limitations began to run in this case, the court 15 will refer the matter back to the assigned Magistrate Judge and provide Petitioner an opportunity 16 to address this issue. Specifically, Petitioner is directed to provide affidavits and/or other 17 evidence concerning (1) when he learned of the proceedings in Tulare County Superior Court 18 following the July 9, 2018 letter from CDCR; (2) who informed Petitioner of that proceeding; (3) 19 what steps Petitioner took to learn about the proceeding; (4) when Petitioner retained counsel to 20 file his state habeas petitions; and (5) any other information relevant to the question of the 21 applicable statute of limitations term. 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 23 de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 24 objections, the court refers the matter back to the assigned Magistrate Judge for amended findings 25 and recommendations responsive to the information Petitioner has been directed to provide. 26 /// 27 /// 28 /// 1 Accordingly: 2 1. Petitioner is directed to file within thirty (30) days of the date of service of this order 3 documentation regarding how and when he learned of the hearing held in Tulare 4 County Superior Court pursuant to the July 9, 2018, letter from CDCR; 5 2. Within twenty-one (21) days of the date of service of Petitioner’s filing, Respondent 6 may file a response brief; and 7 3. Within seven (7) days of the date of service of Respondent’s response, Petitioner may 8 file a reply. 9 4. The undersigned refers the matter back to the assigned Magistrate Judge for amended 10 findings and recommendations (ECF No. 22). 11 12 13 | □□ □□ SO ORDERED. 14 Dated: _ October 13, 2022 5 UNITED f£TATES DISTRICT JUDGE

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