1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL V. ALEDO, Case No. 22-cv-07672-PCP
8 Petitioner, ORDER GRANTING MOTION TO 9 v. DISMISS
10 D. SAMUEL, et al., Re: Dkt. No. 14 Respondents. 11
12 13 Paul Aledo filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254. Respondent has moved to dismiss the habeas petition as untimely, and Mr. Aledo has 15 opposed the motion. For the reasons discussed below, the Court dismisses the action as untimely. 16 I. BACKGROUND 17 A. Conviction and direct appeal 18 Mr. Aledo was convicted in Monterey County Superior Court of premeditated attempted 19 murder and was found to have personally used a firearm and to have caused great bodily injury. 20 Dkt. No. 14 (“Dismissal Motion”) at 2 (summarizing Mr. Aledo’s conviction and challenges 21 thereto). On October 18, 2017, he was sentenced to a total term of 25 years to life in state prison. 22 Dismissal Mot. at 2; Pet. at 1. 23 Mr. Aledo filed a habeas petition in the Monterey County Superior Court on September 24, 24 2018, which was denied on October 31, 2018. Dismissal Mot. at 2; Pet., Ex. 2. 25 Mr. Aledo appealed his conviction and filed a second state habeas petition. Dismissal Mot. 26 at 2 & Ex. 2. California’s Sixth District Court of Appeal remanded Mr. Aledo’s case to the trial 27 court to revisit the sentence enhancement. Dismissal Mot., Ex. 1. It denied Mr. Aledo’s second 1 The Monterey County Superior Court declined to resentence Mr. Aledo. He appealed that 2 decision, and the Sixth District Court of Appeal affirmed on July 14, 2021. Dismissal Mot., Ex. 4. 3 Mr. Aledo did not pursue his direct appeal to the California Supreme Court. 4 B. Habeas proceedings after the direct appeal 5 On April 18, 2022, Mr. Aledo filed a third state habeas petition in Monterey County 6 Superior Court (“2022 State Petition”). Pet., Ex. 2 at 35 (state court decision, stating when Mr. 7 Aledo filed his petition); see also Pet., Ex. 2 (Mr. Aledo’s “respon[s]e to Monterey Co[unty],” 8 stating he filed the state habeas petition on April 18). Monterey County Superior Court denied the 9 2022 State Petition on April 29, 2022. Pet., Ex. 2 at 35, 37 (showing the decision was signed on 10 April 27, but not electronically filed until April 29). 11 Mr. Aledo filed a habeas petition in the Sixth District Court of Appeal on May 13, 2022. 12 Dismissal Mot., Ex. 5. The Sixth District Court of Appeal treated this petition as an appeal of the 13 Monterey County Superior Court’s decision. See Pet., Ex. 2 at 40 (showing that the petition 14 originated in superior court). The Sixth District Court of Appeal summarily denied the petition. 15 Dismissal Mot., Ex. 5; Pet., Ex. 2 at 41. 16 Mr. Aledo sought review in the California Supreme Court on August 10, 2022. See Pet., 17 Ex. 2 at 45 (stating the petition was for review of the Monterey County Superior Court’s and Sixth 18 District Court of Appeal’s decisions); Dismissal Mot., Ex. 6 (petitioner signed the petition on 19 August 10). The California Supreme Court summarily denied the petition. Dismissal Mot., Ex. 7. 20 Mr. Aledo filed the instant habeas action on or after November 29, 2022. Pet. at 6 (signed 21 as of that date). 22 II. DISCUSSION 23 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a statute 24 of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by 25 prisoners challenging noncapital state convictions or sentences must be filed within one year of the 26 latest of the date on which: (1) the judgment became final after the conclusion of direct review or 27 the time has passed for seeking direct review; (2) an impediment to filing an application created by 1 constitutional right asserted was recognized by the Supreme Court, if the right was newly 2 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the 3 factual predicate of the claim could have been discovered through the exercise of due diligence. 28 4 U.S.C. § 2244(d)(1). 5 Here the parties agree that the statute of limitations began to run on August 23, 2021. 6 Dismissal Mot. at 3; Opp. at 1. Unless he is eligible for tolling, Mr. Aledo thus had until August 7 23, 2022, to file his federal habeas petition. 8 A. Statutory tolling 9 Mr. Aledo contends the statute of limitations was tolled by the 2022 State Petition. Opp. at 10 1–2. He is incorrect. This petition results in no statutory tolling because it was denied as untimely. 11 See 28 U.S.C. § 2244(d)(2) (The one-year limitations period is tolled for the “time during which a 12 properly filed application for State post-conviction or other collateral review with respect to the 13 pertinent judgment or claim is pending.”) (emphasis added). 14 The Monterey County Superior Court rejected the 2022 State Petition as untimely with a 15 citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). See Pet., Ex. 2 at 36. A Robbins citation is 16 the shorthand used by California courts to signal that a petition has been rejected as untimely. 17 See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (denial of petition with citation to 18 Robbins at the page on which opinion discusses timeliness determinations was clear denial on 19 timeliness grounds). “When a postconviction petition is untimely under state law, ‘that [is] the end 20 of the matter’ for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) 21 (citing Carey v. Saffold, 536 U.S. 214, 226 (2002)). As in Pace, “[b]ecause the state court rejected 22 petitioner’s [postconviction] petition as untimely, it was not ‘properly filed,’ and he is not entitled 23 to statutory tolling under § 2244(d)(2).” Id. at 417; see also Lakey v. Hickman, 633 F.3d 782, 786 24 (9th Cir. 2011) (no statutory tolling for petition rejected as untimely by California Supreme Court 25 because petition was not “properly filed”; the fact that California’s timeliness rule frequently 26 requires consideration of diligence does not matter); Thorson, 479 F.3d at 645 (denial of petition 27 with citation to Robbins at the page on which opinion discusses timeliness determinations was 1 “pending”). 2 The Monterey County Superior Court’s denial of the 2022 State Petition as untimely strips 3 that petition of any tolling effect. This is so even though the Monterey County Superior Court also 4 concluded that Mr. Aledo’s petition was duplicative and failed to show prejudice. Even though the 5 Monterey County Superior Court rejected the 2022 State Petition for multiple reasons, the fact that 6 one of those reasons was its untimeliness is sufficient to strip the 2022 State Petition of any tolling 7 effect. See Bonner v. Carey, 425 F.3d 1145, 1148–49 (9th Cir. 2005), amended, 439 F.3d 993 (9th 8 Cir. 2006) (“Neither does the fact that the superior court also denied Bonner’s petition on the 9 merits save his petition. Because the California courts dismissed Bonner’s petition as untimely, his 10 petition was not ‘properly filed’ under AEDPA.”). Mr.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL V. ALEDO, Case No. 22-cv-07672-PCP
8 Petitioner, ORDER GRANTING MOTION TO 9 v. DISMISS
10 D. SAMUEL, et al., Re: Dkt. No. 14 Respondents. 11
12 13 Paul Aledo filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254. Respondent has moved to dismiss the habeas petition as untimely, and Mr. Aledo has 15 opposed the motion. For the reasons discussed below, the Court dismisses the action as untimely. 16 I. BACKGROUND 17 A. Conviction and direct appeal 18 Mr. Aledo was convicted in Monterey County Superior Court of premeditated attempted 19 murder and was found to have personally used a firearm and to have caused great bodily injury. 20 Dkt. No. 14 (“Dismissal Motion”) at 2 (summarizing Mr. Aledo’s conviction and challenges 21 thereto). On October 18, 2017, he was sentenced to a total term of 25 years to life in state prison. 22 Dismissal Mot. at 2; Pet. at 1. 23 Mr. Aledo filed a habeas petition in the Monterey County Superior Court on September 24, 24 2018, which was denied on October 31, 2018. Dismissal Mot. at 2; Pet., Ex. 2. 25 Mr. Aledo appealed his conviction and filed a second state habeas petition. Dismissal Mot. 26 at 2 & Ex. 2. California’s Sixth District Court of Appeal remanded Mr. Aledo’s case to the trial 27 court to revisit the sentence enhancement. Dismissal Mot., Ex. 1. It denied Mr. Aledo’s second 1 The Monterey County Superior Court declined to resentence Mr. Aledo. He appealed that 2 decision, and the Sixth District Court of Appeal affirmed on July 14, 2021. Dismissal Mot., Ex. 4. 3 Mr. Aledo did not pursue his direct appeal to the California Supreme Court. 4 B. Habeas proceedings after the direct appeal 5 On April 18, 2022, Mr. Aledo filed a third state habeas petition in Monterey County 6 Superior Court (“2022 State Petition”). Pet., Ex. 2 at 35 (state court decision, stating when Mr. 7 Aledo filed his petition); see also Pet., Ex. 2 (Mr. Aledo’s “respon[s]e to Monterey Co[unty],” 8 stating he filed the state habeas petition on April 18). Monterey County Superior Court denied the 9 2022 State Petition on April 29, 2022. Pet., Ex. 2 at 35, 37 (showing the decision was signed on 10 April 27, but not electronically filed until April 29). 11 Mr. Aledo filed a habeas petition in the Sixth District Court of Appeal on May 13, 2022. 12 Dismissal Mot., Ex. 5. The Sixth District Court of Appeal treated this petition as an appeal of the 13 Monterey County Superior Court’s decision. See Pet., Ex. 2 at 40 (showing that the petition 14 originated in superior court). The Sixth District Court of Appeal summarily denied the petition. 15 Dismissal Mot., Ex. 5; Pet., Ex. 2 at 41. 16 Mr. Aledo sought review in the California Supreme Court on August 10, 2022. See Pet., 17 Ex. 2 at 45 (stating the petition was for review of the Monterey County Superior Court’s and Sixth 18 District Court of Appeal’s decisions); Dismissal Mot., Ex. 6 (petitioner signed the petition on 19 August 10). The California Supreme Court summarily denied the petition. Dismissal Mot., Ex. 7. 20 Mr. Aledo filed the instant habeas action on or after November 29, 2022. Pet. at 6 (signed 21 as of that date). 22 II. DISCUSSION 23 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a statute 24 of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by 25 prisoners challenging noncapital state convictions or sentences must be filed within one year of the 26 latest of the date on which: (1) the judgment became final after the conclusion of direct review or 27 the time has passed for seeking direct review; (2) an impediment to filing an application created by 1 constitutional right asserted was recognized by the Supreme Court, if the right was newly 2 recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the 3 factual predicate of the claim could have been discovered through the exercise of due diligence. 28 4 U.S.C. § 2244(d)(1). 5 Here the parties agree that the statute of limitations began to run on August 23, 2021. 6 Dismissal Mot. at 3; Opp. at 1. Unless he is eligible for tolling, Mr. Aledo thus had until August 7 23, 2022, to file his federal habeas petition. 8 A. Statutory tolling 9 Mr. Aledo contends the statute of limitations was tolled by the 2022 State Petition. Opp. at 10 1–2. He is incorrect. This petition results in no statutory tolling because it was denied as untimely. 11 See 28 U.S.C. § 2244(d)(2) (The one-year limitations period is tolled for the “time during which a 12 properly filed application for State post-conviction or other collateral review with respect to the 13 pertinent judgment or claim is pending.”) (emphasis added). 14 The Monterey County Superior Court rejected the 2022 State Petition as untimely with a 15 citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). See Pet., Ex. 2 at 36. A Robbins citation is 16 the shorthand used by California courts to signal that a petition has been rejected as untimely. 17 See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007) (denial of petition with citation to 18 Robbins at the page on which opinion discusses timeliness determinations was clear denial on 19 timeliness grounds). “When a postconviction petition is untimely under state law, ‘that [is] the end 20 of the matter’ for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) 21 (citing Carey v. Saffold, 536 U.S. 214, 226 (2002)). As in Pace, “[b]ecause the state court rejected 22 petitioner’s [postconviction] petition as untimely, it was not ‘properly filed,’ and he is not entitled 23 to statutory tolling under § 2244(d)(2).” Id. at 417; see also Lakey v. Hickman, 633 F.3d 782, 786 24 (9th Cir. 2011) (no statutory tolling for petition rejected as untimely by California Supreme Court 25 because petition was not “properly filed”; the fact that California’s timeliness rule frequently 26 requires consideration of diligence does not matter); Thorson, 479 F.3d at 645 (denial of petition 27 with citation to Robbins at the page on which opinion discusses timeliness determinations was 1 “pending”). 2 The Monterey County Superior Court’s denial of the 2022 State Petition as untimely strips 3 that petition of any tolling effect. This is so even though the Monterey County Superior Court also 4 concluded that Mr. Aledo’s petition was duplicative and failed to show prejudice. Even though the 5 Monterey County Superior Court rejected the 2022 State Petition for multiple reasons, the fact that 6 one of those reasons was its untimeliness is sufficient to strip the 2022 State Petition of any tolling 7 effect. See Bonner v. Carey, 425 F.3d 1145, 1148–49 (9th Cir. 2005), amended, 439 F.3d 993 (9th 8 Cir. 2006) (“Neither does the fact that the superior court also denied Bonner’s petition on the 9 merits save his petition. Because the California courts dismissed Bonner’s petition as untimely, his 10 petition was not ‘properly filed’ under AEDPA.”). Mr. Aledo thus is not entitled to statutory 11 tolling for the days during which the 2022 State Petition was awaiting decision in the Monterey 12 County Superior Court. 13 Mr. Aledo also is not entitled to any tolling for his later state habeas petitions in the Sixth 14 District Court of Appeal and the California Supreme Court because their summary denials created 15 a presumption, unrebutted by Mr. Aledo, that those courts agreed with the lower court’s 16 determination on the timeliness question. See Curiel v. Miller, 780 F.3d 1201, 1203–04 (9th Cir. 17 2015); id. at 1204 (when the California Supreme Court denies the petition summarily, it is 18 presumed that court agreed with the lower court’s determination on the timeliness question unless 19 “strong evidence” rebuts this presumption). 20 Since the 2022 State Petition, and the appeals therefrom, had no tolling effect, the one-year 21 limitations period for Mr. Aledo to file his federal habeas petition continued untolled, and expired 22 August 23, 2022. 23 B. Equitable tolling 24 In some circumstances, the one-year limitations period can be equitably tolled because 25 § 2244(d) is not jurisdictional. Holland v. Florida, 560 U.S. 631, 645 (2010). ‘[A] litigant seeking 26 equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his 27 rights diligently, and (2) that some extraordinary circumstance stood in his way.” Id. at 655 1 2006). 2 Here, Mr. Aledo did not argue that he is entitled to equitable tolling. See generally Opp. 3 || Mr. Aledo’s pursuit of the untimely 2022 State Petition does not entitle him to equitable tolling. 4 See Pace, 544 US. at 416 (“[P]etitioner challenges the fairness of our interpretation. He claims 5 || that a ‘petitioner trying in good faith to exhaust state remedies may litigate in state court for years 6 || only to find out at the end that he was never “properly filed,’” and thus that his federal habeas 7 petition is time barred. ... A prisoner seeking state postconviction relief might avoid this 8 || predicament, however, by filing a ‘protective’ petition in federal court and asking the federal court 9 to stay and abey the federal habeas proceedings until state remedies are exhausted.”). In addition, 10 || Mr. Aledo did not identify any extraordinary circumstance which stood in the way of his filing a 11 timely federal habeas petition. See generally Opp. 12 Mr. Aledo’s federal petition for writ of habeas corpus was filed nearly three months after 13 the expiration of the federal habeas statute of limitations period. The instant petition must 14 || therefore be dismissed as untimely. 2 15 C. Certificate of appealability 16 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in 3 17 which “jurists of reason would find it debatable whether the petition states a valid claim of the 18 denial of a constitutional right and that jurists of reason would find it debatable whether the 19 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 20 || TIL. CONCLUSION 21 Respondent’s motion to dismiss is GRANTED. This action is dismissed because the 22 || petition for writ of habeas corpus was not filed before the expiration of the habeas statute of 23 || limitations period. The Clerk shall close the file. 24 25 IT IS SO ORDERED. 26 Dated: March 13, 2024 Ze 27 Lb Coy 28 P. Casey Pitts United States District Judge