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Fisher v. Planet

United States District Court, C.D. California

September 18, 2014

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

Summarily Dismissing the Habeas 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 Fisher ("petitioner") filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2254 ("the petition") in the United States District Court for the Northern District of California on June 3, 2014, and that court transferred the case here.[1] For the reasons that follow, the Court will dismiss the habeas petition with prejudice as facially 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.[2] Petitioner currently is incarcerated pursuant to a conviction sustained in Kern County Superior Court in February 2012. (Petition at 2.) However, the petition does not challenge the 2012 conviction. Rather, the petition challenges the validity of a Ventura County Superior Court conviction listed on page 11 of petitioner's "CJIS"[3] as DCN-T6169631270356000744 (the "Ventura Conviction"). Petitioner alleges that he is attacking the Ventura Conviction on the ground that it "never happened" and is "bogus." (Petition at 2-3.)

Petitioner has not appended a copy of the CJIS report to the petition. However, pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of its records and files in petitioner's other cases filed in this district. In one now-closed habeas action, Case No. CV 14-4494-VBF (MAN), petitioner attached to his habeas petition a copy of the November 30, 2010 CJIS report in question. That CJIS report, at pages 10-11 and entry DCN-T6169631270356000744, contains an entry for the Ventura Conviction, namely, a misdemeanor conviction for petitioner for a violation of California Penal Code ยง 148(a)(1) (wilfully resisting, delaying, or obstructing a public officer or paramedic), which was sustained on April 30, 2002, following a jury trial in the Ventura County Superior Court. ( See Case No. LA CV 14-04494-VBF (MAN), Docket No. 1 at 51-52.)[4]

On June 16, 2014, United States Magistrate Judge Margaret A. Nagle issued in Order To Show Cause in this case ("OSC"). The OSC explained to petitioner why the petition appears to be both unexhausted and untimely, as well as duplicative of the petition filed in the 3356 Action, and directed him to file a response, by no later than July 9, 2014, showing that his claims are exhausted, timely, and not duplicative. 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 duplicative 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 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 5, 7, 12; 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, untimely, and duplicative.[5] Regardless of that presumed concession, it ...


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