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Fisher v. Planet

United States District Court, C.D. California

September 16, 2014

GARY FRANCIS FISHER, Petitioner,
v.
MICHAEL PLANET, Respondent.

Summarily Dismissing the Habeas Corpus Petition With Prejudice for Untimeliness; and Denying a Certificate of Appealability

OPINION AND ORDER

VALERIE BAKER FAIRBANK, District Judge.

Proceeding pro se, California state prisoner Gary Francis Fisher ("petitioner") filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("the petition") in the United States District Court for the Northern District of California on March 31, 2014, and that court transferred the case here. For the reasons that follow, the Court will summarily dismiss the petition as untimely and will decline to issue a certificate of appealability ("COA").

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the petition is untimely.[1] Petitioner alleges that, in 2005, he discovered that his "CJIS"[2] listed two criminal convictions sustained in the Ventura County Superior Court, one on April 30, 2002, and the other on February 3, 2004 (the "State Convictions"). Petitioner contends that this CJIS record is "false, " a "sham, " and "manipulated, " because this is "way too many burglarys [ sic ]." Cf. generally United States v. Crooks, 337 F.Appx. 159 (3d Cir. 2009) (noting defendant's awareness that "the CJIS is not accurate all of the time"). Petitioner apparently contends that he did not sustain the State Convictions, which therefore should not be included in the CJIS record of his criminal history. (Petition at 1-5.) Petitioner's allegations indicate that he did not file an appeal in connection with the State Convictions, and he affirmatively alleges that he did not pursue any post-conviction or collateral remedies - state or federal - with respect to the State Convictions. (Petition at 2-3.)

The petition bears a proof of service in which petitioner states, under penalty of perjury, that he placed the petition in an envelope for mailing on March 25, 2014, for delivery to the Northern District of California. However, the application to proceed in forma pauperis submitted with the petition bears a signature date of March 27, 2014, and thus, the petition could not have been submitted for mailing any earlier than March 27, 2014. Pursuant to the "mailbox rule, " the Court will deem the petition to have been "filed" on March 27, 2014.[3]

On June 4, 2014, United States Magistrate Judge Margaret A. Nagle issued an Order To Show Cause in this case ("OSC"). The OSC explained to petitioner why the claims which he asserts in the petition appear to be both unexhausted and untimely and directed him to file a response, no later than July 7, 2014, showing that his claims are exhausted and timely. The OSC warned petitioner as follows:

Petitioner is explicitly cautioned that his failure to comply with this Order will be deemed to constitute a concession that the Petition is unexhausted and may be dismissed on that ground.

* * *

Petitioner is explicitly cautioned that his failure to comply with this Order will be deemed to constitute a concession that this action is untimely and may be dismissed on that ground.

OSC at 4 and 9 (emphasis in original.) Petitioner did not file a response to the OSC, nor has he requested an extension of time to do so. Thus, the Court assumes that petitioner concedes the petition is unexhausted and untimely.[4] Independent of that concession, the petition is clearly untimely for the following reasons.

The one-year limitations period that governs the petition is set forth in 28 U.S.C. § 2244(d)(1).[5] Through its subparts (A) through (D), section 2244(d)(1) contemplates four possible triggering dates for the accrual of a federal habeas claim (i.e., the commencement of a state prisoner's one-year limitations period for bringing that claim in federal court). The Supreme Court has described these dates as follows:

§ 2244(d)(1) provides that a "1-year period of limitation shall apply to an application for a writ of habeas corpus." (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the "application" as a whole, § 2244(d)(1)(A) (date of final judgment), but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate).

Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1813 n.6, reh'g denied, 545 U.S. 1135 , 125 S.Ct. 2931 (2005).

In most instances, a state prisoner's limitations period will be governed by Section 2244(d)(1)(A). Cf. Dodd v. United States, 125 S.Ct. 2478, 2481 (2005) (discussing a parallel limitations provision for 28 U.S.C. § 2255 motions and noting that the provision establishes the operative accrual date "[i]n most cases"). If this were a typical Section 2254 habeas case and subsection (A) applied here, petitioner's limitations period for the State Convictions would have commenced running in 2002 (for the 2002 conviction) and in 2004 (for the 2004 conviction), and thus, petitioner's limitations period would have expired for these two convictions, respectively, in 2003 and 2005. Petitioner, however, contends that he did not sustain the State Convictions and did not learn of their existence, as set forth in his criminal history record, until 2005. ...


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