(HC) Barbir v. Covello

Opinion

RAJKO BARBIR, Case No. 2:24-cv-2284-JDP (P) Petitioner, v. ORDER; FINDINGS AND RECOMMENDATIONS Respondent. Petitioner, a state prisoner, brings this action under section 2254. I found that the initial petition appeared untimely, and offered petitioner an opportunity to amend and explain why his claims should proceed. Petitioner filed an amended petition, ECF No. 7, that does nothing to ameliorate the obvious untimeliness of his claims. Accordingly, I now recommend that the action be dismissed. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). As before, petitioner’s claims stem from a conviction that was finalized in the late nineteen-eighties. ECF No. 7 at 9 (noting that the state court of appeal affirmed the conviction in 1989). Any challenge to this conviction is, as I found previously, well past the one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Notably, for claimants like petitioner, whose conviction was finalized before the passage of AEDPA in 1996, the deadline for filing a federal habeas petition expired one year after passage of the act, in 1997. See Miles v. Punty, 187 F.3d 1104, 1105 (9th Cir. 1999) (“Accordingly, a prisoner with a state conviction finalized before April 24, 1996, such as Miles, had until April 23, 1997 to file a federal habeas petition.”). Plaintiff filed the initial petition in this action on August 22, 2024. ECF No. 1. As in his previous petition, petitioner has not offered any justification for the delay or argument that tolling renders claims related to this conviction timely. Accordingly, I now recommend this action be dismissed as untimely. Accordingly, it is ORDERED that the Clerk of Court shall assign a district judge to this action. Further, it is RECOMMENDED that the amended petition, ECF No. 7, be DISMISSED without leave to amend as untimely. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of service of these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Any such document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed within fourteen days of service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). > IT IS SO ORDERED. ( | { Wine Dated: _ May 16, 2025 Q_——_. JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE