1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NOEMI DEL CARMEN ACOSTA, Case No.: 19-cv-01190-H-KSC
14 Petitioner, ORDER ADOPTING REPORT AND 15 v. RECOMMENDATION AND GRANTING RESPONDENT’S 16 RICK HILL, WARDEN, MOTION TO DISMISS PETITION 17 Respondent. FOR WRIT OF HABEAS CORPUS
18 [Doc. Nos. 6 and 11.] 19
21 Noemi Del Carmen Acosta, proceeding pro se, filed a Petition for Writ of Habeas 22 Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254 on June 24, 2019. (Doc. No. 1.) The 23 Petition raises two claims: (1) that she was provided ineffective assistance of counsel 24 because her trial attorney did not adequately investigate the relevant facts and law; and 25 (2) her guilty plea is constitutionally invalid because it was coerced by trial counsel and 26 was not entered into intelligently, knowingly, or voluntarily. (Doc. No. 7-3, Lodgment 27 No. 3, pp. 12-16.) 28 1 On September 6, 2019, Respondent filed a motion to dismiss the Petition. (Doc. No. 2 6.) Respondent contends that the Petition should be dismissed with prejudice because 3 Petitioner’s claims are time-barred by the one-year statute of limitations set out in the 4 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). 5 (Doc. No. 6.) Petitioner did not file an opposition but did file a First Amended Petition, in 6 which she raises the same claims made to the state court and requests this Court stay her 7 federal claims while she pursues exhaustion with the California Court of Appeal. (Doc. No. 8 9, pp. 7, 17-22.) On November 15, 2019, Respondent filed a reply. (Doc. No. 10.) 9 On November 21, 2019, Magistrate Judge Karen S. Crawford issued a report and 10 recommendation (the “Report” or “R&R”) recommending that this Court grant 11 Respondent’s motion to dismiss. (Doc. No. 11.) Judge Crawford’s order instructed that 12 objections to the Report must be filed by December 6, 2019. Neither party filed any 13 objections. 14 After careful consideration of the pleadings and for the reasons set forth below, this 15 Court ADOPTS the Report and GRANTS Respondent’s motion to dismiss. 16 ANALYSIS1 17 A. The R&R’s Conclusion are Proper 18 The Court reviews de novo those portions of an R&R to which objections are made. 19 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 20 findings or recommendations made by the magistrate judge.” Id. “The statute makes it 21 clear,” however, “that the district judge must review the magistrate judge’s findings and 22 recommendations de novo if an objection is made, but not otherwise.” United States v. 23 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see 24 also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that 25 where no objections were filed, the district court had no obligation to review the magistrate 26 27 28 1 The Court adopts and incorporates the procedural and factual background set forth in the R&R 1 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 2 de novo, findings and recommendations that the parties themselves accept as correct.” 3 Reyna-Tapia, 328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and 4 this District. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, 5 de novo review of a[n] R & R is only required when an objection is made to the R & R.”); 6 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report 7 in its entirety without review because neither party filed objections to the report despite the 8 opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 9 2004) (Benitez, J.) 10 In this case, the deadline to file written objections to the R&R was December 6, 11 2019. (Doc. No. 11.) However, no objections have been filed and neither party has 12 requested additional time to do so. Consequently, the Court may adopt the R&R on that 13 basis alone. See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, having conducted a de novo 14 review of the Petition (Doc. No. 1), Respondent Hill’s motion to dismiss (Doc. No. 10), 15 and the R&R (Doc. No. 11), the Court concludes that Judge Crawford’s recommendations 16 are proper. 17 B. The Statute of Limitations Bars the Petition 18 Judge Crawford properly concluded that dismissal is warranted based on the statute 19 of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 20 28 U.S.C. § 2244(d). (Doc. No. 11 at 4-5.) A federal habeas petition may be dismissed with 21 prejudice if it is not filed within the appropriate time period pursuant to the AEDPA. 22 Jiminez v. Rice, 276 F.3d 478, 482–83 (9th Cir. 2001). AEDPA establishes a one-year 23 statute of limitation to file a federal habeas petition for “a person in custody pursuant to the 24 judgment of a State court,” which begins to run, in relevant part, from “the date on which 25 the judgment became final by the conclusion of direct review or the expiration of the time 26 for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). Although the one-year statute of 27 limitations can be calculated based on the “latest” of several other grounds in addition to 28 the ground identified in Section 2244(d)(1)(A), see 28 U.S.C. § 2224(d)(1)(B)–(D), the 1 Petition does not set forth any facts or arguments that suggest any of these other grounds 2 are applicable. (Doc. No. 1.) Therefore, Acosta’s Petition is subject to the 1-year statute of 3 limitations calculated from the date on which the judgment she challenges became final. 4 Judge Crawford correctly applied the statute of limitations in this case. As Judge 5 Crawford determined, the relevant date for computation of the statute of limitations was 6 one year from the date that the state court conviction became final – March 26, 2016. (Doc. 7 No. 11. at 4.) Absent any applicable tolling, Petitioner then had 365 days, until March 26, 8 2017, to timely initiate a federal habeas petition. Judge Crawford correctly determined that 9 Acosta was not entitled to any statutory tolling because none of her subsequent filings had 10 any effect on the AEDPA statute of limitations as they were each filed after the statute of 11 limitations had expired on March 26, 2017. Because Petitioner did not initiate this action 12 until June 19, 2019, over three years after her conviction became final, the Petition is barred 13 by AEDPA’s one-year statute of limitations. 14 Next, Judge Crawford soundly reasoned that Acosta is not entitled to equitable 15 tolling of AEDPA’s statute of limitations because the Petition does not allege any facts that 16 would explain the delay in bringing a timely Petition. (Doc. No. 11 at 5-6.); Luu v.
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NOEMI DEL CARMEN ACOSTA, Case No.: 19-cv-01190-H-KSC
14 Petitioner, ORDER ADOPTING REPORT AND 15 v. RECOMMENDATION AND GRANTING RESPONDENT’S 16 RICK HILL, WARDEN, MOTION TO DISMISS PETITION 17 Respondent. FOR WRIT OF HABEAS CORPUS
18 [Doc. Nos. 6 and 11.] 19
21 Noemi Del Carmen Acosta, proceeding pro se, filed a Petition for Writ of Habeas 22 Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254 on June 24, 2019. (Doc. No. 1.) The 23 Petition raises two claims: (1) that she was provided ineffective assistance of counsel 24 because her trial attorney did not adequately investigate the relevant facts and law; and 25 (2) her guilty plea is constitutionally invalid because it was coerced by trial counsel and 26 was not entered into intelligently, knowingly, or voluntarily. (Doc. No. 7-3, Lodgment 27 No. 3, pp. 12-16.) 28 1 On September 6, 2019, Respondent filed a motion to dismiss the Petition. (Doc. No. 2 6.) Respondent contends that the Petition should be dismissed with prejudice because 3 Petitioner’s claims are time-barred by the one-year statute of limitations set out in the 4 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). 5 (Doc. No. 6.) Petitioner did not file an opposition but did file a First Amended Petition, in 6 which she raises the same claims made to the state court and requests this Court stay her 7 federal claims while she pursues exhaustion with the California Court of Appeal. (Doc. No. 8 9, pp. 7, 17-22.) On November 15, 2019, Respondent filed a reply. (Doc. No. 10.) 9 On November 21, 2019, Magistrate Judge Karen S. Crawford issued a report and 10 recommendation (the “Report” or “R&R”) recommending that this Court grant 11 Respondent’s motion to dismiss. (Doc. No. 11.) Judge Crawford’s order instructed that 12 objections to the Report must be filed by December 6, 2019. Neither party filed any 13 objections. 14 After careful consideration of the pleadings and for the reasons set forth below, this 15 Court ADOPTS the Report and GRANTS Respondent’s motion to dismiss. 16 ANALYSIS1 17 A. The R&R’s Conclusion are Proper 18 The Court reviews de novo those portions of an R&R to which objections are made. 19 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 20 findings or recommendations made by the magistrate judge.” Id. “The statute makes it 21 clear,” however, “that the district judge must review the magistrate judge’s findings and 22 recommendations de novo if an objection is made, but not otherwise.” United States v. 23 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see 24 also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that 25 where no objections were filed, the district court had no obligation to review the magistrate 26 27 28 1 The Court adopts and incorporates the procedural and factual background set forth in the R&R 1 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 2 de novo, findings and recommendations that the parties themselves accept as correct.” 3 Reyna-Tapia, 328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and 4 this District. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, 5 de novo review of a[n] R & R is only required when an objection is made to the R & R.”); 6 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report 7 in its entirety without review because neither party filed objections to the report despite the 8 opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 9 2004) (Benitez, J.) 10 In this case, the deadline to file written objections to the R&R was December 6, 11 2019. (Doc. No. 11.) However, no objections have been filed and neither party has 12 requested additional time to do so. Consequently, the Court may adopt the R&R on that 13 basis alone. See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, having conducted a de novo 14 review of the Petition (Doc. No. 1), Respondent Hill’s motion to dismiss (Doc. No. 10), 15 and the R&R (Doc. No. 11), the Court concludes that Judge Crawford’s recommendations 16 are proper. 17 B. The Statute of Limitations Bars the Petition 18 Judge Crawford properly concluded that dismissal is warranted based on the statute 19 of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 20 28 U.S.C. § 2244(d). (Doc. No. 11 at 4-5.) A federal habeas petition may be dismissed with 21 prejudice if it is not filed within the appropriate time period pursuant to the AEDPA. 22 Jiminez v. Rice, 276 F.3d 478, 482–83 (9th Cir. 2001). AEDPA establishes a one-year 23 statute of limitation to file a federal habeas petition for “a person in custody pursuant to the 24 judgment of a State court,” which begins to run, in relevant part, from “the date on which 25 the judgment became final by the conclusion of direct review or the expiration of the time 26 for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). Although the one-year statute of 27 limitations can be calculated based on the “latest” of several other grounds in addition to 28 the ground identified in Section 2244(d)(1)(A), see 28 U.S.C. § 2224(d)(1)(B)–(D), the 1 Petition does not set forth any facts or arguments that suggest any of these other grounds 2 are applicable. (Doc. No. 1.) Therefore, Acosta’s Petition is subject to the 1-year statute of 3 limitations calculated from the date on which the judgment she challenges became final. 4 Judge Crawford correctly applied the statute of limitations in this case. As Judge 5 Crawford determined, the relevant date for computation of the statute of limitations was 6 one year from the date that the state court conviction became final – March 26, 2016. (Doc. 7 No. 11. at 4.) Absent any applicable tolling, Petitioner then had 365 days, until March 26, 8 2017, to timely initiate a federal habeas petition. Judge Crawford correctly determined that 9 Acosta was not entitled to any statutory tolling because none of her subsequent filings had 10 any effect on the AEDPA statute of limitations as they were each filed after the statute of 11 limitations had expired on March 26, 2017. Because Petitioner did not initiate this action 12 until June 19, 2019, over three years after her conviction became final, the Petition is barred 13 by AEDPA’s one-year statute of limitations. 14 Next, Judge Crawford soundly reasoned that Acosta is not entitled to equitable 15 tolling of AEDPA’s statute of limitations because the Petition does not allege any facts that 16 would explain the delay in bringing a timely Petition. (Doc. No. 11 at 5-6.); Luu v. Beard, 17 2014 WL 2616878, at *2, 13 (S.D. Cal. June 12, 2014). Accordingly, the Court adopts the 18 R&R and grants Respondent Hill’s motion to dismiss the Petition as time-barred by the 19 AEDPA. 20 C. The Court Declines to Issue a Certificate of Appealability 21 Pursuant to Rule 11 of the Rules following 28 U.S.C. § 2254, a district court “must 22 issue or deny a certificate of appealability when it enters a final order adverse to the 23 applicant.” The district court may issue a certificate of appealability if the petitioner “has 24 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). 25 To meet this threshold showing, a petitioner must show that: (1) the issues are debatable 26 among jurists of reason, (2) that a court could resolve the issues in a different manner, or 27 (3) that the questions are adequate to deserve encouragement to proceed further. Maciel v. 28 Cate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a review of the Petition, the record, and 1 the R&R, the Court cannot find that any of these grounds applies. Reasonable jurists would 2 not find debatable or wrong that the Petition is time-barred by AEDPA or that Petitioner 3 has not met her burden to show that equitable tolling is appropriate. Accordingly, the Court 4 declines to issue Petitioner a certificate of appealability 5 CONCLUSION 6 For the foregoing reasons, the Court hereby: (1) APPROVES and ADOPTS the 7 R&R in its entirety (Doc. No. 11); (2) GRANTS Respondent Hill’s motion to dismiss 8 (Doc. No. 6); (3) DISMISSES the Petition WITH PREJUDICE (Doc. No. 1); and (4) 9 DENIES Petitioner a certificate of appealability. 10 IT IS SO ORDERED. 11 DATED: January 9, 2020
12 MARILYN L. HUFF, District Judge 13 UNITED STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28