(HC) Weisner v. Allison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKIE WEISNER, No. 2:23-cv-00662-DAD-AC (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 KATHLEEN ALLISON, THE PENDING HABEAS PETITION AS UNTIMELY 15 Respondent. (Doc. Nos. 31, 32) 16 17 Petitioner Frankie Weisner is a state prisoner proceeding pro se with a petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 19, 2024, the assigned magistrate judge directed petitioner to show cause why 21 the petition should not be dismissed as untimely. (Doc. No. 29.) The magistrate judge observed 22 that petitioner’s judgment of conviction became final on January 16, 2018, but the original 23 petition in this case was not filed until April 10, 2023. (Id. at 7.) On September 16, 2024, 24 petitioner filed a response, which has been styled on the docket as a motion for relief, arguing that 25 his “judgment was not final and still is not currently” and that “equitable tolling is required.” 26 ///// 27 ///// 28 ///// 1 (Doc. No. 31 at 3–4.)1 On October 4, 2024, the assigned magistrate judge issued findings and 2 recommendations recommending that petitioner’s application for a writ of habeas corpus be 3 dismissed as untimely. (Doc. No. 32.) Specifically, the magistrate judge concluded that 4 petitioner had failed to allege facts demonstrating that he is entitled to equitable tolling of the 5 applicable statute of limitations for the more than four years required to make this action timely. 6 (Id. at 2–3.) 7 Those findings and recommendations were served on petitioner and contained notice that 8 any objections thereto were to be filed within twenty-one (21) days from the date of service. (Id. 9 at 3.) On October 25, 2024, petitioner filed his timely objections. (Doc. No. 33.) 10 In his objections, petitioner states that equitable tolling of the statute of limitations is 11 warranted because he “wrote to the Court and public defender’s office in January 2018 or Feb. 12 2018” and the “court never responded” and “the public defender’s office replied stating they were 13 no longer counsel due to a conflict.” (Doc. No. 33 at 4.) Petitioner also states that “[e]quitable 14 tolling is required, as the sentencing transcripts were withheld until around Feb. 2022.” (Doc. 15 No. 33 at 6.) However, neither of these circumstances would render petitioner’s original federal 16 habeas petition in this case, filed on April 10, 2023, timely. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 18 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 19 court finds the findings and recommendations to be supported by the record and proper analysis. 20 Having determined that the pending petition is untimely and subject to dismissal on that 21 basis, the court now turns to whether a certificate of appealability should issue. “[A] state 22 prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 23

24 1 In his filing, petitioner also suggests that the court has “missed [its] chance to fix the problems California made” because he “completed the illegal unconstitutional conviction [he] was forced to 25 serve” so the court may “go ahead and dismiss this petition.” (Doc. No. 31 at 6.) However, a review of the docket indicates that petitioner is currently incarcerated at the California 26 Department of Corrections and Rehabilitation (“CDCR”) Substance Abuse Treatment Facility 27 and State Prison located in Corcoran, California. The CDCR Inmate Lookup website also indicates that petitioner is located at this facility and is not eligible for parole until December 28 2026. 1 | denial of his petition,” and an appeal is allowed only in certain circumstances. Miller-El v. 2 | Cockrell, 537 U.S. 322, 335-36 (2003); see 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals 3 | from state prisoners only with a certificate of appealability). Where, as here, “the court denies 4 | habeas relief on procedural grounds without reaching the prisoner’s underlying constitutional 5 | claims,” the court should issue a certificate of appealability “if jurists of reason would find it 6 | debatable whether the petition states a valid claim of the denial of a constitutional right, and that 7 | jurists of reason would find it debatable whether the district court was correct in its procedural 8 | ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is 9 | present ...areasonable jurist [cannot] conclude either that the district court erred in dismissing 10 | the petition or that the petitioner should be allowed to proceed further.” Jd. Because the 11 | petitioner’s pending application is clearly time-barred, the court declines to issue a certificate of 12 | appealability. 13 Accordingly, 14 1. The findings and recommendations issued on October 4, 2024 (Doc. No. 32) are 15 ADOPTED in full; 16 2. Petitioner’s response to the findings and objections, styled on the court’s docket as 17 a motion for relief (Doc. No. 31), is hereby DENIED; 18 3. The pending petition for writ of habeas corpus (Doc. No. 4) is DISMISSED as 19 untimely; 20 4. The court DECLINES to issue a certificate of appealability; and 21 5. The Clerk of the Court is directed to CLOSE this case. 22 IT IS SO ORDERED. | Dated: _ April 8, 2025 Da A. 2, axel 24 DALE A. DROZD 35 UNITED STATES DISTRICT JUDGE

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