Opinion

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JESS RICO MARTINEZ, Case No. 1:25-cv-01214-CDB (HC)

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR LACK OF

13 v. JURISDICTION OR, ALTERNATIVELY, AS

UNTIMELY

14 PEOPLE FOR THE STATE OF

CALIFORNIA, (Doc. 1)

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Respondent. OBJECTIONS DUE WITHIN 14 DAYS

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Clerk of the Court to Assign District Judge

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19 Petitioner Jess Rico Martinez (“Petitioner”), a state prisoner, proceeds pro se and in forma

20 pauperis with a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1).

21 Because the petition is successive, the undersigned recommends that the petition be dismissed for

22 lack of jurisdiction. Alternatively, the undersigned recommends that the petition be dismissed as

23 untimely.

24 Relevant Background

25 Petitioner is currently serving a term of 40 years to life in prison following his 2006

26 conviction for second degree robbery. (Doc. 1 at 1). On appeal, Petitioner challenged the trial

27 court’s imposition of certain sentencing enhancements, and the Fifth Appellate District Court of

Appeal reduced his original sentence, but otherwise affirmed Petitioner’s conviction. People v.

1 Martinez, No. F051549, 2008 WL 444523, at *1-2 (Cal. Ct. App. Feb. 20, 2008).

2 On April 27, 2009, Petitioner filed a federal habeas petition challenging his convictions in

3 this District. See Martinez v. McDonald, No. 1:09-cv-00945-OWW-SMS. The district judge

4 ultimately adopted the magistrate judge’s recommendation that the petition be denied. See id. at

5 Docs. 30, 33.

6 Petitioner filed the instant petition on September 3, 2025.1 (Doc. 1 at 6).

7 Preliminary Screening

8 Rule 4 of the Rules Governing § 2254 Cases (“Habeas Rules”) requires the Court to

9 conduct a preliminary review of each petition for writ of habeas corpus. Pro se habeas petitions

10 are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the

11 Court must dismiss a petition “[i]f it plainly appears from the petition … that the petitioner is not

12 entitled to relief.” Habeas Rule 4. Habeas Rule 2(c) requires that a petition 1) specify all grounds

13 for relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the

14 relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to

15 a real possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (“Habeas

16 Corpus Rule 2(c) is more demanding.”). Allegations in a petition that are vague, conclusory, or

17 palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491

18 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend

19 unless it appears that no tenable claim for relief can be pleaded were such leave to be granted.

20 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam).

21 Second or Successive Petition

22 As indicated above, Petitioner previously filed a federal habeas petition challenging the

23 same underlying convictions as the instant petition. Pursuant to 28 U.S.C. § 2244(b)(1), “[a]

24 claim presented in a second or successive habeas corpus application under section 2254 that was

25 presented in a prior application shall be dismissed.” Where the claim was not present in a prior

26 application, it shall be dismissed unless (1) “the applicant shows that the claim relies on a new

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1 The Court applies the mailbox rule and deems the Petition filed on the date Petitioner delivered it to the

1 rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,

2 that was previously unavailable;” or (2) “the factual predicate for the claim could not have been

3 discovered previously through the exercise of due diligence” and “the facts underlying the claim,

4 if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear

5 and convincing evidence that, but for constitutional error, no reasonable factfinder would have

6 found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2). However, before

7 filing a second or successive petition, a petitioner must “move in the appropriate court of appeals

8 for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

9 In the instant petition, Petitioner appears to allege claims of prosecutorial misconduct and

10 ineffective assistance of counsel based on the alleged use of prior false convictions to support

11 sentencing enhancements. (See Doc. 1 at 3). For Petitioner to be able to proceed on his petition,

12 he must establish that the factual predicate for these claims accrued after he filed his initial

13 petition. See Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (“Nor is a petition second or

14 successive if the factual predicate for the claim accrued only after the time of the initial

15 petition.”). However, Petitioner fails to present any reason why these claims—which necessarily

16 are based on facts at trial and therefore accrued well before his previous habeas petition was

17 filed—could not have been presented in his initial petition. To the extent Petitioner’s citation to

18 California Penal Code § 745 can be interpreted as an argument that he is bringing his petition

19 pursuant to a new rule of law, this state statute does not equate to a “new rule of constitutional

20 law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. §

21 2244(b)(2)(A). Thus, the current petition is an unauthorized successive petition, and this “court

22 lacks jurisdiction and must dismiss the petition.” Brown, 889 F.3d at 667.

23 Untimely Petition

24 Even if the petition is not an unauthorized successive petition, it is untimely. Under the

25 Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations

26 applies to petitions seeking habeas relief under § 2254. 28 U.S.C. § 2244(d)(1). Generally, the

27 one-year clock starts to run on “the date on which the judgment became final by the conclusion of

1 Statutory tolling applies to the “time during which a properly filed application for State post-

2 conviction or other collateral review with respect to the pertinent judgment or claim is pending.”

3 42 U.S.C. § 2244(d)(2). In limited circumstances, a petitioner is entitled to delayed

4 commencement of the limitations period. 42 U.S.C. § 2244(d)(1)(B)-(D). Additionally, equitable

5 tolling may be granted to a petitioner under limited circumstances if he shows that (1) he has been

6 pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and

7 prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). A court may sua sponte

8 raise the timeliness of the petition but should only dismiss after allowing the petitioner adequate

9 notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 210 (2006) (holding

10 that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a

11 state prisoner’s habeas petition” but “before acting on its own initiative, … must accord the

12 parties fair notice and an opportunity to present their positions”).

13 Here, Petitioner filed the instant petition on September 3, 2025, indicating his conviction

14 was affirmed on direct appeal on August 25, 2017, and he did not seek review by the California

15 Supreme Court. (Doc. 1 at 5-6). The Court notes, however, that Petitioner’s direct appeal was

16 actually decided on February 20, 2008. See Martinez, 2008 WL 444523, at *1. However, even

17 using Petitioner’s incorrect date of August 25, 2017, his conviction would have become final ten

18 days later on September 4, 2017, when the time to file a petition for review in the California

19 Supreme Court expired. See Cal. R. Ct. 8.500(e)(1). The one-year statute of limitations to file a

20 federal petition would begin to run the next day, such that it would expire on September 4, 2018.

21 Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner does not identify any

22 subsequent proceedings that would toll the limitations period or facts to establish why the Court

23 should apply equitable tolling. Thus, because even under Petitioner’s incorrect date the statute of

24 limitations expired approximately seven years before the instant petition was filed, it is untimely.

25 Conclusion and Recommendation

26 Accordingly, the Clerk of Court is DIRECTED to randomly assign a district judge.

27 Additionally, for the foregoing reasons, it is HEREBY RECOMMENDED that the

1 | untimely.

2 These findings and recommendations will be submitted to the United States District Judge

3 | assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of

4 | Practice for the United States District Court, Eastern District of California. Within 14 days of

5 || service, any party may file written objections to these findings and recommendations with the

6 | Court and serve a copy on all parties. Such a document should be captioned “Objections to

7 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without

8 | leave of Court and good cause shown. The Court will not consider exhibits attached to the

9 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the

10 exhibit in the record by its CM/ECF document and page number, when possible, or otherwise

11 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be

12 || disregarded by the District Judge when reviewing the Findings and Recommendations under 28

13 | U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time may waive the right to

14 | appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

15 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

16 | IT IS □□ ORDERED.

M Dated: _ September 17, 2025 | Ww ¥ D i

18 UNITED STATES MAGISTRATE JUDGE

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