Opinion
Case No. CV 14-09928 SVW (RAO)
07-19-2017
JOE QUSTA NINO, Petitioner, v. JEFFREY BEARD, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records and files herein, and the Magistrate Judge's Revised Report and Recommendation. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner's Objections were directed. The Court hereby accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
Petitioner opposes Respondent's Motion to Dismiss the Petition as time barred, asserting that he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) or, in the alternative, that he qualifies for an exception to AEDPA's statute of limitations because he is actually innocent. The Magistrate Judge recommended that the Petition be denied as time barred and dismissed with prejudice. ///
The Court has carefully considered Petitioner's Objections to the Revised Report and Recommendation and Petitioner's argument, citing to Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015), that this Court can review for reasonableness a state court's determination of untimeliness of a post-conviction petition. Petitioner's citation to Rudin is unavailing. In Rudin, the Court of Appeals for the Ninth Circuit found that the petitioner was not entitled to statutory tolling under § 2244(d)(2) and rejected the argument that the Nevada Supreme Court erred in finding her post-conviction petition untimely filed. 781 F.3d at 1053-54. "While we may not have made the same decision as the Nevada Supreme Court, we are not at liberty to second guess that court's decision when it was acting on direct appeal of the state post-conviction court's judgment. The state supreme court concluded that Rudin's petition was untimely under state law, and '[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2).'" Id. at 1054 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)).
Petitioner argues that the Superior Court of California acted unreasonably in determining that Petitioner's first state habeas petition was untimely, and this Court should find his petition "properly filed," entitling him to statutory tolling under AEDPA. Pet'r's Objs. at 7. The United States Supreme Court has made clear, however, that in a federal habeas matter, the district court does not review for reasonableness a state court's determination of untimeliness of a post-conviction petition. See Allen v. Siebert, 552 U.S. 3, 5-6, 128 S. Ct. 2, 169 L. Ed. 2d 329 (2007) (per curiam) (concluding that petitioner's state postconviction petition was not 'properly filed' because the state courts deemed it time barred, even though the state courts had discretion in enforcing the time bar); accord Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009) ("[T]he Supreme Court has now twice found state habeas petitions improperly filed under AEDPA even though the relevant condition to filing was either new or unevenly applied.") (citing Pace, 544 U.S. 408; Siebert, 552 U.S. at 6-7).
"[W]here a state court rejects a petition for failure to comply with conditions of filing, that is 'the end of the matter.'" Zepeda, 581 F.3d at 1018 (citing Carey v. Saffold, 536 U.S. 214, 226, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002) (observing that "[i]f the California Supreme Court had clearly ruled that Saffold's 4 1/2-month delay was 'unreasonable,' that would be the end of the matter" for tolling purposes); Pace, 544 U.S. at 417); see also Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (finding no statutory tolling when state habeas petition was rejected as untimely by California Supreme Court even though California's timeliness rule required consideration of diligence). Accordingly, Petitioner's Objections are overruled, and this Court adopts the Revised Report and Recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice. DATED: July 19, 2017
/s/_________
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE