Perea v. Loera, Civil No. 10cv1565 RBB

• Decision Date: 13 June 2011
• Docket Number: Civil No. 10cv1565 RBB
• Court: U.S. District Court — Southern District of California
• Parties: JAIME TAPIA PEREA, Petitioner, v. SHERIFF RAY LOERA, et al., Respondents.

JAIME TAPIA PEREA, Petitioner, v. SHERIFF RAY LOERA, et al., Respondents.

Civil No. 10cv1565 RBB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: June 13, 2011

ORDER DENYING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Petitioner Jaime Tapia Perea has filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second degree burglary in Imperial County Superior Court case number JCF22575. (Second Am. Pet. 1, ECF No. 9.¹) Respondent has filed a Motion to Dismiss Second Amended Petition, arguing that it was filed beyond the statute oflimitations and is unexhausted. (Mot. Dismiss 1-2, ECF No. 12; id. Attach. #1 Mem. P. & A. 2-9.)

The Court has considered the Second Amended Petition, Respondent's Motion to Dismiss and Memorandum of Points and Authorities in Support of the Motion to Dismiss, Petitioner's Opposition to the Motion, the lodgments submitted by Respondent, and all other supporting documents submitted by the parties. For the reasons set forth below, the Motion to Dismiss is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Perea pleaded no contest to second degree burglary on October 20, 2008. (See Lodgment No. 1, People v. Perea, No. JCF22575 (Imperial Super. Ct. Oct. 20, 2008) (plea of guilty/no contest --felony).) On November 19, 2008, he was sentenced in accordance with the plea agreement to the middle term of two years in state prison, the execution of which was suspended, and placed on three years of formal probation. (Id. (superior court minutes, Nov. 19, 2008) .) As conditions of probation, Perea was ordered to serve ninety days in the county jail and pay restitution in the amount of $3,000.00. (Id. at 16.) A restitution hearing was set for December 17, 2008. (Id. at 17.)

The court minutes from the December 17, 2008 hearing reflect that a memorandum from the probation department was submitted to the court; Perea asked for and received a continuance of the restitution hearing until January 21, 2009. (Id. (superior court minutes, Dec. 17, 2008).) Another continuance of the restitution hearing was granted on January 21, 2009; the continued hearing was set for March 5, 2009. (Id. (superior court minutes, Jan. 21, 2009) .)

On March 5, 2009, the superior court noted it had received a "court order filed on 3/2/09, in defendant's habeas writ proceeding in Superior Court case EHC01114 . . . ." (Id. (superior court minutes, Mar. 5, 2000).) The order reads as follows:

Petitioner initiated this action by a petition filed January 15, 2009. Petitioner seeks to withdraw a plea of no contest entered in this court on October 20, 2008 in case No. JCF 22575. Petitioner alleges perjury by the victim.

Petitioner was sentenced pursuant to his plea on November 10, 2008. A restitution hearing is scheduled for March 11, 2009 at the jail division of this Court.

The Court finds that petitioner has failed to make out a prima facie showing of entitlement to relief under habeas corpus law. For that reason, the petition is DENIED.

The matter is referred to the trial court for a determination as to whether the petition may be treated as a motion pursuant to Penal Code section 1118.

(See Second Am. Pet. Attach. #1, Ex. C (order denying petition at 1-2), ECF No. 9.) The court calendared Perea's case for March 11, 2009, and set a "Review of Defendant's Plea" and "Restitution Hearing." (Lodgment No. 1, People v. Perea, No. JCF22575 (superior court minutes, Mar. 11, 2009).) Counsel was appointed for Perea, and the case was continued until April 15, 2009. (Id.)

At the April 15, 2009, hearing, Perea was appointed a new attorney who was to determine whether there was any legal basis for Perea to withdraw his plea. (Id. (superior court minutes, Apr. 15, 2009).) The matter was continued to May 13, 2009, for a "Restitution (evidentiary) Hearing and Review of Defendant's Plea." (Id.) On that date, it was continued again until May 27, 2009. (Id. (superior court minutes, May 13, 2009).) Because a witness was unavailable for the May 27, 2009 hearing, the matter was resetfor June 10, 2009. (Id. (superior court minutes, May 27, 2009).) At the hearing, Perea's counsel told the court he had found no grounds upon which to move to withdraw Perea's plea. (Id. (superior court minutes, June 10, 2009).) The prosecutor and defendant reached an agreement to reduce the amount of restitution; the court accepted the stipulation and ordered restitution in the amount of $300.00. (Id.) The court modified the November 19, 2008 minutes to reflect the change. (Id.)

Petitioner did not file a direct appeal, but six months later, on December 11, 2009, he filed a petition for writ of habeas corpus in the California Court of Appeal for the Fourth District, Division One. (Lodgment No. 2, Perea v. County of Imperial, No. D05 6411 (Cal. Ct. App. filed Dec. 11, 2009) (petition).) The appellate court denied the petition in a written, unpublished opinion filed December 23, 2009. (Lodgment No. 3, In re Perea, No. D056411, slip op. (Cal. Ct. App. Dec. 23, 2009).) Perea then attempted to file a petition for review of the appellate court's decision with the California Supreme Court. That document was rejected by the court as untimely. (Second Am. Pet. Attach. #1, Ex. 15, ECF No. 9.))

Perea filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court on July 23, 2010. (See Pet., ECF No. 1.) The Court construed the Petition as one filed pursuant to 28 U.S.C. § 2254 because Perea sought to challenge the validity of his state court conviction. (Order Construing Pet. 1-2, ECF No. 4; see White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that § 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). Petitioner failed to name a properrespondent. (See id. at 2-3.) The Court dismissed the case without prejudice and with leave to amend, giving Perea until November 15, 2010, to file a First Amended Petition. (Id. at 3.)

On September 23, 2010, Petitioner filed a document which the Court construed as a First Amended Petition. (See First. Am. Pet., ECF No. 6.) The Court again dismissed the case without prejudice and with leave to amend because Perea had failed to use the proper form, name the proper respondent, and allege exhaustion of his claims. (See Order Dismissing Case Without Prejudice 1-5, ECF No. 7.) Petitioner was given leave to file a Second Amended Petition. (Id. at 4.)

Perea submitted a Second Amended Petition, which was filed nunc pro tunc to the date received, December 7, 2010. (Second Am. Pet., ECF No. 9); see Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a notice of appeal by a pro se prisoner is deemed filed when the prisoner delivers it to prison authorities for forwarding to the court); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (applying the Houston mailbox rule to pro se prisoners' federal habeas petitions). The Court issued an order setting a briefing schedule, notifying Respondents of Petitioner's consent to magistrate judge jurisdiction, and directing Respondents to indicate whether they consented to magistrate judge jurisdiction [ECF No. 10].

On February 4, 2011, Respondent filed a Motion to Dismiss and Memorandum of Points and Authorities in Support of Motion. (See Mot. Dismiss Attach. #1 Mem. P. & A. 1-9, ECF No. 12.) Perea submitted an opposition to the motion on February 23, 2011, whichhe titled a "Traverse." (See Notice Traverse Mot. Dismiss, ECF No. 15.)

On April 4, 2011, the Court ordered Respondent to submit a supplemental brief addressing two questions:

(1) whether and why Petitioner's conviction became final on March 2, 2009, when the state habeas corpus petition he filed in the Imperial County Superior Court was denied, or on June 10, 2009, when Petitioner's court-appointed counsel determined there was no basis for the withdrawal of Petitioner's plea and the superior court modified the original restitution award . . . . and (2) whether and why the effective filing date of Petitioner's federal petition is July 23, 2010, the date of the first petition he filed in this Court, September 23, 2010, the date the First Amended Petition was filed, or December 6, 2010, the date the Second Amended Petition was filed.

(See Order Directing Resp'ts 3, Apr. 4, 2011, ECF No. 17.) Respondent Loera consented to magistrate judge jurisdiction. (See Notice, Consent & Reference 1, ECF No. 18.) The Respondent filed a Supplemental Brief on April 14, 2011. (Resp't's Supplemental Br., ECF No. 19.) Although not provided for, Perea filed an Opposition to Respondent's Supplemental Brief [ECF No. 20].

III. DISCUSSION

Respondent argues that Perea's Petition is both untimely and unexhausted. (Mot. Dismiss Attach. #1 Mem. P. & A. 2-9, ECF No. 12.) For the reasons set forth below, the Court concludes the Petition is timely under 28 U.S.C. § 2244(d)(1) and is exhausted. Accordingly, the Motion to Dismiss is DENIED.

A. Timeliness

Under 28 U.S.C. § 2244(d), a petitioner has one year from the date his or her conviction is final to file a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d) (West 2006). The statute of limitations,however, is subject to both statutory and equitable tolling. See 28 U.S.C. § 2244(d)(1); Holland v. Florida, _ U.S. __, 130 S.Ct. 2549, 2560 (2010).

1. Effective Filing Date of the Petition in Federal Court

Respondent contends that the effective filing date for purposes of AEDPA's statute of limitations is December 6, 2010, when Petitioner constructively filed his Second Amended Petition. (See Mot. Dismiss Attach #1 Mem. P. & A. 5-6, ECF No. 12.) When a district court has expressly or impliedly retained jurisdiction over an action, however, the amended petition relates back to the filing date of the original petition. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999) (citing...