United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE
DOUGLAS F. McCORMICK, Magistrate Judge.
On December 9, 2014, Petitioner Derrick Arnold Johnson constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") in this Court, raising 11 grounds for relief. Petitioner was convicted by a Los Angeles County Superior Court jury on May 25, 1993 of one count of second degree murder and one count of evading an officer causing death. Petitioner was sentenced to 21 years-to-life in state prison. Petition at 4.
A. The Petition Is Facially Untimely
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a portion of which established a one-year statute of limitations for bringing a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the limitations period commences on the date a petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1). However, for convictions that became final before AEDPA took effect, such as Petitioner's, the limitation period begins with AEDPA's effective date of April 24, 1996. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Accordingly, Petitioner had until April 24, 1997 to file a timely habeas petition in this Court. However, Petitioner did not file the instant action until December 9, 2014, more than 18 years too late.
From the face of the Petition, it does not appear that Petitioner has any basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(B). Nor does it appear that Petitioner has any basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(C) because none of the claims alleged in the Petition appear to be based on a federal constitutional right that was initially recognized by the United States Supreme Court subsequent to the date his conviction became final and that has been made retroactively applicable to cases on collateral review. Finally, it does not appear that Petitioner has any basis for contending that he is entitled to a later trigger date under § 2244(d)(1)(D) because it appears from the face of the Petition that Petitioner was aware of the factual predicate of all his claims, with the exception of Ground One, at the time of his trial in 1993. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance").
B. It Does Not Appear that Petitioner Is Entitled to Any Statutory or Equitable Tolling Which Would Make the Petition Timely
Thus, unless a basis for tolling the statute existed, Petitioner's last day to file his federal habeas petition was April 24, 1997, more than 18 years ago. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). No basis for statutory tolling under § 2244(d)(2) appears to exist here. The only state collateral challenges filed by Petitioner subsequent to the date his judgment of conviction became final are habeas petitions that Petitioner filed in the California state courts in 2014. See Petition at 14-15. It does not appear that Petitioner would be entitled to statutory tolling for any of those state habeas petitions because they were not filed until approximately 18 years after Petitioner's federal filing deadline had already lapsed. See, e.g., Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that § 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001).
The Supreme Court has held that AEDPA's one-year limitation period is also subject to equitable tolling in appropriate cases. See Holland v. Florida, 560 U.S. 605, 645 (2010). However, a habeas petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently; and (2) that "some extraordinary circumstance stood in his way." See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland, 560 U.S. at 649. Here, Petitioner does not allege that any circumstances exist which would establish a right to equitable tolling.
C. Petitioner's Ex Post Facto Claim Is Untimely; Alternatively, It Should Be Dismissed as the Subject of a Current Class Action Suit
In Ground One, Petitioner alleges that the application of "Marsy's Law, " Cal. Penal Code § 3041.5, to deny Petitioner a parole hearing for ten years from his 2010 parole hearing date violated the Constitution's Ex Post Facto clause. Marsy's Law increased the maximum deferral period of a subsequent parole hearing from one year to 15 years, with a presumptive deferral period of ten years. Cal. Penal Code § 3041.5(b)(3)(B). Because Petitioner knew the factual predicate of his Ex Post Facto claim at the time of his parole hearing in 2010, it appears that this claim is also barred by AEDPA's one-year statute of limitations.
Alternatively, even if it is not time barred, this claim should be dismissed without prejudice because Petitioner is a putative class member in an ongoing class action lawsuit asserting the same claim, which is currently pending in the United States District Court for the Eastern District of California. Gilman v. Brown, Civ. S 05-830-LKK (GGH). The Gilman plaintiffs allege, among other things, that the provisions of Marsy's Law extending deferral periods for parole hearings violate the Ex Post Facto Clause. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1103 (9th Cir. 2011).
On March 4, 2009, the district court in Gilman certified a class of all California state prisoners convicted of murder currently serving sentences of life with the possibility of parole, like Petitioner. See Gilman v. Davis, 2009 WL 577767 (E.D.Cal. 2009). On February 4, 2010, the district court granted a preliminary injunction enjoining the defendants from enforcing the deferral period provisions of Marsy's Law as to the named plaintiffs. See Gilman v. Davis, 690 F.Supp.2d 1105 (E.D.Cal. 2010). On January 24, 2011, the Ninth Circuit reversed, holding that the plaintiffs had failed to show a likelihood of success on this claim. See Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011).
On February 28, 2014, following a bench trial, the district court in Gilman declared, inter alia, that the deferral provisions of Marsy's Law violate the Ex Post Facto Clause. On March 27, 2014, the Gilman defendants filed a notice of appeal. On August 12, 2014, in Gilman v. Brown, Ninth Circuit Case No. 14-15680, the Ninth Circuit granted the defendants' emergency motion to stay the district court's February 28, 2014 order. The appeal is currently still pending in the Ninth Circuit.
As noted, Petitioner is a member of the Gilman class because he is a California state prisoner who has been sentenced to a life term with the possibility of parole for an offense that occurred before November 4, 2008. Ground One is the equivalent of a suit for the same injunctive and equitable relief which is the subject of the Gilman class action. Because the Gilman class action is ongoing, dismissal of Ground One without prejudice is appropriate. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979) (district court may dismiss individual plaintiff's action where plaintiff is member of a pending class action raising the same claims). Multiple district courts presented with habeas petitions challenging parole decisions applying Marsy's Law have dismissed a habeas challenge in light of the ongoing Gilman action. See, e.g., Washington v. Soto, No. 14-6649, 2014 WL 6669894, at *5 (C.D. Cal. Oct. 27, 2014) (recommending that an Ex Post Facto challenge to Marsy's Law be dismissed given ...