1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

MARCOS R. CHAVEZ,

10 Case No. 22-cv-02819-RS (PR) Petitioner, 1] D Vv. ORDER OF DISMISSAL

GIGI MATTESON,

Respondent. 14

15 16 INTRODUCTION

= 17 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state court 18 || convictions. The petition for such relief is untimely, however, as pointed out in 19 |) respondent’s motion to dismiss. (Dkt. No. 14.) The filing deadline for the petition was 20 || March 8, 2017, but the petition was not filed until May 2, 2022. The motion 1s 21 || GRANTED and the petition is DISMISSED. 22 BACKGROUND 23 In 2016 petitioner pleaded guilty in the Santa Cruz County Superior Court to 24 || charges of robbery, kidnapping, voluntary manslaughter, making terrorist threats, assault 25 || with great bodily injury, and committing a hate crime. (Pet., Dkt. No. 1 at 2.) As part of 26 || his plea bargain, petitioner waived his appellate rights and his right to challenge 27 || collaterally his conviction. (Respondent’s Motion to Dismiss (MTD), Superior Court 28 || Minute Order, Dkt. No. 14-1 at 18.) A sentence of 30 years was imposed on March 7,

1 2016. (Id., Opp. to State Supreme Court Habeas Petition, Dkt. No. 14-1 at 7; Pet., Dkt. 2 No. 1 at 2.) Because petitioner waived his appellate rights, his conviction became final on 3 the day he was sentenced, March 7, 2016.1 This means he had until March 8, 2017, one 4 year after his convictions became final, to file a timely federal habeas petition. 28 U.S.C. 5 § 2244(d). His federal petition was not filed until May 2, 2022, which is well past the 6 deadline. 7 On April 23, 2021, four years after his conviction became final, petitioner filed a 8 habeas petition in the state superior court, which was denied on June 16, 2021. (Pet., Dkt. 9 No. 1 at 4-5.) On July 6, 2021, petitioner filed a habeas petition in the state appellate 10 court, which was denied on September 1, 2021. (Id. at 5.) On October 7, 2021, petitioner 11 filed a habeas petition in the state supreme court, which was denied on February 16, 2022. 12 (Id. at 5-6.) Under the prisoner mailbox rule, petitioner filed his federal habeas petition on 13 May 2, 2022.2 (Pet., Dkt. No. 1 at 16.) 14 DISCUSSION 15 I. Standard of Review 16 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has a statute 17 of limitations, which is codified at 28 U.S.C. § 2244(d). Federal habeas petitions must be 18 filed within one year of the latest of the date on which: (1) the judgment became final after 19 the conclusion of direct review or the time passed for seeking direct review; (2) an 20 impediment to filing an application created by unconstitutional state action was removed, 21 if such action prevented petitioner from filing; (3) the constitutional right asserted was 22 recognized by the Supreme Court, if the right was newly recognized by the Supreme Court 23

24 1 Even if petitioner s conviction did not become final until 60 days after sentencing, when the deadline for filing a direct appeal had passed, see Cal. Rule of Court 8.104 and 25 8.308(a), the petition would still be untimely. 26 2 The Court assumes that he put the petition in the prison mail the day he signed it and will use that as the filing date under the prisoner mailbox rule. See generally Houston v. Lack, 27 487 U.S. 266, 276 (1988). 1 |} and made retroactive to cases on collateral review; or (4) the factual predicate of the claim 2 || could not have been discovered through the exercise of due diligence. See id. § 2244 3 || (d)(1). This one-year clock starts ticking 90 days after the state’s highest court has 4 || completed direct state review. “[W]hen a petitioner fails to seek a writ of certiorari from 5 || the United States Supreme Court, the AEDPA’s one-year limitations period begins to run 6 || on the date the ninety-day period defined by Supreme Court Rule 13 expires.” Bowen v. 7 || Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). 8 || IL. Timeliness of the Petition under the One-Year Limitation Period 9 Under the one-year limitation period, the petition is untimely. Petitioner had until 10 || March 8, 2017 to file a timely habeas petition, which was one-year after his state 11 || convictions became final.* 28 U.S.C. § 2244(d). He did not file his federal petition until 12 || May 2, 2022, well after the deadline. 13 Petitioner contends he has “presented newly discovered claims after petitioner S 14 || diligence demonstrated [sic] an unauthorized sentence.” (Opp. to MTD, Dkt. No. 16 at 5.) 3 15 || While the delayed discovery of a factual predicate of a claim can be the basis for a delayed 2 16 || start to the limitations period (28 U.S.C. § 2244(d)(1)(D)), petitioner fails to specify what 17 || the factual predicates are, when he discovered them, or why they could not have been 18 || discovered through the exercise of due diligence. Also, the facts underlying the claims he 19 || raises in his petition (an unauthorized sentence, never being given a waiver form to sign, 20 || and a failure to be advised of his rights) would have been known to petitioner at the time of 21 || sentencing. Therefore, he has not shown any reason for a delayed start to the limitations 22 || period under 28 U.S.C. § 2244(d)(1)(D). Absent sufficient statutory or equitable tolling, 23 || the petition is untimely and will be dismissed. 24 25 26 || > Petitioner is not entitled to the additional 90 days afforded by Bowen. Because he did not appeal, and therefore did not obtain a state supreme court decision on his appeal, he could 27 || not petition the United States Supreme Court for review. 28 ORDER OF DISMISSAL CASE No. 22-cv-02819-RS

1 || I. Statutory Tolling 2 For purposes of statutory tolling, the time during which a properly filed application 3 || for state post-conviction or other collateral review is pending is excluded from the one- 4 || year limitations period. See 28 U.S.C. § 2244(d)(2). A state habeas petition filed after 5 AEDPA’s statute of limitations ended, such as is the case here, cannot toll the limitation 6 || period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Section 2244(d)(2) 7 || cannot “revive” the limitation period once it has run (1.e., restart the clock to zero); it can 8 || only serve to pause a clock that has not yet fully run. “Once the limitations period is 9 || expired, collateral petitions can no longer serve to avoid the statute of limitations.” Rashid 10 || v. Kuhlmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998). 1] Petitioner filed his first state habeas petition on April 23, 2021, which was after the || one-year filing deadline of March 8, 2017. Petitions filed after the one-year deadline 13 || cannot toll the limitations period.* Also, for the reasons stated above, petitioner is not S 14 || entitled to a delayed start to the limitations period. Therefore, petitioner is not entitled to 3 15 || any statutory tolling. 16 || IV. Equitable Tolling 17 A federal habeas petitioner is entitled to equitable tolling if he can show □□□□□ that 18 || he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 19 || stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 20 || (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miles v. Prunty, 187 21 || F.3d 1104, 1107 (9th Cir. 1999)). Equitable tolling is not granted as a matter of course. In 22 || fact, it is “unavailable in most cases.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 23 || 2002) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)). “[T]he threshold 24 || necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 25 26 || 4 Even if these petitions were filed before the limitations period expired, it is unlikely they would toll the limitations period. Petitioner waived his right to challenge collaterally his 27 convictions. 28 ORDER OF DISMISSAL CASE No. 22-cv-02819-RS

1 || swallow the rule.” /d. (citation omitted). 2 Petitioner does not make any assertions regarding equitable tolling, and therefore 3 || he has not shown he had been pursuing his rights diligently and some extraordinary 4 || circumstance prevented timely filing. Rather, he repeatedly contends that an unauthorized 5 || sentence “may be challenged in a habeas corpus petition at anytime” and cites California 6 || state court cases in support. (Opp. to MTD, Dkt. No. 16 at 2.) This contention is 7 || unavailing. That state law allows a prisoner to challenge an unauthorized state sentence at 8 || any time does not apply to the timeliness determination under AEDPA. What those state 9 || cases mean is that a prisoner may at any time raise in state court a challenge to an 10 || unauthorized state sentence. Also, the underlying merits of a petition are irrelevant to 11 || whether a federal petition is timely. Helton v. Sec’y for the Dep't of Corr., 259 F.3d 1310, 1314-15 (11th Cir. 2001) (“The ‘extraordinary circumstances’ standard applied in this 13 || circuit focuses on the circumstances surrounding the late filing of the habeas petition, S 14 || rather than the circumstances surrounding the underlying conviction.”); Huapaya v. 15 || Martinez, No. 14-cv-05305-HSG (PR), 2016 WL 403397, at *5 (N.D. Cal. Feb. 3, 2016); 16 || Whaley v. Grounds, No. CV 11-6771 FMO(JC), 2013 WL 1304906, at *8 (C.D. Cal. Feb. 17 || 28, 2013). 18 Petitioner also contends he has “presented newly discovered claims after petitioner 19 || diligence demonstrated [sic] an unauthorized sentence was imposed by the trial court.” 20 || (Opp. to MTD, Dkt. No. 16 at 5.) While the delayed discovery of a factual predicate of a 21 || claim can be the basis for a delayed start to the limitations period (28 U.S.C. § 2244(d) 22 || (1)(D)), petitioner fails to specify what the factual predicates are, when he discovered 23 || them, or why they could not have been discovered through the exercise of due diligence. 24 || Also, the facts underlying the claims he raises in his petition would have been known to 25 || him at the time of sentencing. He has not shown he had been pursuing his rights diligently 26 || and some extraordinary circumstance prevented timely filing. Petitioner is not entitled to 27 || equitable tolling. 28 ORDER OF DISMISSAL CASE No. 22-cv-02819-RS

1 CONCLUSION 2 Respondent’s motion to dismiss the petition as untimely is GRANTED. (Dkt. No. 3 || 14.) The petition is DISMISSED. The Clerk shall terminate all pending motions, enter 4 || judgment in favor of respondent, and close the file. 5 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 6 || reason would find it debatable whether the petition states a valid claim of the denial of a 7 || constitutional right and that jurists of reason would find it debatable whether the district 8 || court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 9 || Petitioner may seek a certificate of appealability in the Ninth Circuit Court of Appeals. 10 IT IS SO ORDERED. 11 || Dated: April 13, 2023 a 12

RICHARD SEEBO

& 13 Chief United States District Judge 15 16

Z 18

19 20 21 22 23 24 25 26 27 28 ORDER OF DISMISSAL CASE No. 22-cv-02819-RS