1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAROL J. BLANDON-VILLAGRA, Case No. 22-cv-03434-WHO (PR)

Petitioner, 8 ORDER GRANTING v. 9 RESPONDENT’S MOTION TO DISMISS 10 JEFF MACOMBER, Dkt. No. 9 Respondent. 11

12 13 INTRODUCTION 14 Petitioner Jarol J. Blandon-Villagra seeks federal habeas relief from his California 15 state convictions. His petition for such relief is untimely, as pointed out in respondent’s 16 unopposed motion to dismiss. Blandon-Villagra had until March 5, 2020 to file a timely 17 federal habeas petition but he did not file the pending one until 2022. Blandon-Villagra 18 has not responded to the motion and therefore has not shown that he is entitled to statutory 19 or equitable tolling. Because the petition is untimely, the motion to dismiss is GRANTED 20 and the petition is DISMISSED. 21 The Clerk shall modify the docket to reflect that Jeff Macomber is the sole proper 22 respondent in this action and to terminate Gregory J. Ahern as respondent. See Rules 23 Governing Section 2254 Cases, Rule 2(a); Fed. R. Civ. P. 25(d). 24 BACKGROUND 25 In 2018, Blandon-Villagra pleaded no contest in the Alameda County Superior 26 Court to two counts of second degree robbery (

) and admitted to an 27 1 enhancement allegation for the personal use of a firearm (id. § 12022.5 (a)(1)).1 (Mot. to 2 Dismiss (MTD), Plea Hearing Transcript, Dkt. No. 9 at 6.) On January 2, 2019, a sentence 3 of nine years in state prison was imposed. (Id., Sentencing Hearing Transcript, Dkt. No. 9 4 at 17, 19.) Blandon-Villagra admits that he did not seek state collateral relief and that he 5 filed no appeal.2 (Pet., Dkt. No. 1 at 2, 3.) 6 Because he filed no appeals, Blandon-Villagra’s conviction became final 60 days 7 after sentencing, on March 4, 2019. See Cal. Rules of Court, Rule 8.308(a). This means 8 that he had until March 5, 2020, to file a timely federal habeas petition, which is one year 9 after his convictions became final.

(d)(1)(A). The current federal 10 petition was filed in 2022, which is well after the March 5, 2020, deadline. 11 After I issued an Order to Show Cause, respondent filed the pending motion to 12 dismiss, which is the subject of this Order. Blandon-Villagra has filed no response to the 13 motion. 14 DISCUSSION 15 I. Standard of Review 16 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 17 federal habeas petitions must be filed within one year of the latest of the date on which: 18 (1) the judgment became final after the conclusion of direct review or the time passed for 19 seeking direct review; (2) an impediment to filing an application created by 20 unconstitutional state action was removed, if such action prevented petitioner from filing; 21 (3) the constitutional right asserted was recognized by the Supreme Court, if the right was 22

23 1 “In his federal petition, petitioner lists his name as ‘Jarol J. Blandon-Villagra’ and his Alameda County Superior Court case number as ‘302 33 098.’ He alleges that he pled 24 guilty to two counts of second degree robbery, and that on December 3, 2018, he was sentenced to eight years. Our inquiries to the Alameda County Superior Court and CDCR 25 turned up no records for anyone with the listed name and case number. Instead, we discovered records for ‘Joral J. Blandon,’ which appear to partially match some of the 26 information provided by petitioner. We therefore presume that these are the records of petitioner’s state judgment.” (MTD, Dkt. No. 9 at 2 n.2.) 27 1 newly recognized by the Supreme Court and made retroactive to cases on collateral 2 review; or (4) the factual predicate of the claim could not have been discovered through 3 the exercise of due diligence.

(d)(1). This one-year clock starts ticking 4 90 days after direct state review is final. “[W]hen a petitioner fails to seek a writ of 5 certiorari from the United States Supreme Court, the AEDPA’s one-year limitations period 6 begins to run on the date the ninety-day period defined by Supreme Court Rule 13 7 expires.” Bowen v. Roe,

(9th Cir. 1999). 8 II. Timeliness of the Petition 9 Blandon-Villagra had until March 5, 2020 — one year after his state convictions 10 became final — to file a timely habeas petition.3 The current petition was filed in 2022, 11 well after the March 5, 2020 deadline, and is untimely. Unless Blandon-Villagra is 12 entitled to statutory or equitable tolling, the petition must be dismissed as untimely. 13 A. Statutory Tolling 14 For purposes of statutory tolling, the time during which a properly filed application 15 for state post-conviction or other collateral review is pending is excluded from the one- 16 year limitations period. See

(d)(2). Because Blandon-Villagra did not 17 file any state petitions for collateral relief, there is no statutory tolling. 18 B. Equitable Tolling 19 A federal habeas petitioner is entitled to equitable tolling if he can show “‘(1) that 20 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 21 stood in his way’ and prevented timely filing.” Holland v. Florida,

, 649 22 (2010) (quoting Pace v. DiGuglielmo,

(2005)); Miles v. Prunty, 187

, 1107 (9th Cir. 1999)). Equitable tolling is not granted as a matter of course. In 24 fact, it is “unavailable in most cases.” Miranda v. Castro,

(9th Cir. 25 2002) (quoting Miles v. Prunty,

(9th Cir. 1999)). “[T]he threshold 26 3 Blandon-Villagra is not entitled to the additional 90 days afforded by Bowen. Because he 27 did not appeal, he could not petition the United States Supreme Court to review a state 1 || necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions 2 || swallow the rule.” Jd. (citation omitted). 3 Because Blandon-Villagra has not filed any response to the motion, he has not 4 || contended or offered support for a contention that he has been acting diligently and that 5 || some extraordinary circumstance prevented timely filing. Therefore, he has not shown he 6 || is entitled to equitable tolling. 7 CONCLUSION 8 Respondent’s motion to dismiss the petition as untimely is GRANTED. (Dkt. No. 9 || 9.) The petition is DISMISSED. 10 A certificate of appealability will not issue. Blandon-Villagra has not shown “that 11 || jurists of reason would find it debatable whether the petition states a valid claim of the 2 denial of a constitutional right and that jurists of reason would find it debatable whether 5 13 || the district court was correct in its procedural ruling.” Slack v. McDaniel,

, |) 484 (2000). 3 15 The Clerk shall modify the docket to reflect that Jeff Macomber is the sole proper a 16 || respondent in this action, and terminate Gregory J. Ahern as respondent. See Rules

= 17 Governing Section 2254 Cases, Rule 2(a); Fed. R. Civ. P. 25(d). 18 The Clerk shall terminate all pending motions, enter judgment in favor of 19 || respondent, and close the file. 20 IT IS SO ORDERED. 21 || Dated: July 14, 2023 UoM.Qe 22 CLIAM H. ORRICK 23 United States District Judge 24 25 26 27 28