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Cooks v. Soto

United States District Court, C.D. California

July 29, 2015

TERREL COOKS, Petitioner,
v.
J. SOTO, Warden, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

Petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears that the one-year statute of limitations has expired.

The court therefore orders Petitioner to show cause on or before August 31, 2015 why the court should not recommend dismissal of the petition with prejudice based on expiration of the one-year statute of limitations.

I.

PROCEDURAL BACKGROUND

On September 22, 2010, a Los Angeles County jury convicted Petitioner of second degree robbery and sentenced him to ten years in prison on November 23, 2010. (Petition at 2 & Ex. A.)

On March 29, 2012, the California Court of Appeal affirmed the judgment. ( Id. at 3.) On the same day the Court of Appeal affirmed the judgment, it denied a habeas petition. See California Appellate Courts Case Information online docket in Case No. B237938. Petitioner did not file a petition for review in the California Supreme Court on direct appeal.

On June 12, 2012, Petitioner filed a habeas petition in the Los Angeles Superior Court, which was denied on the same day.[1] Cooks I, LD 5-6.

On July 18, 2012, Petitioner filed a second habeas petition in the Court of Appeal, which was denied on August 16, 2012. Cooks I, LD 7-8.

On August 29, 2012, Petitioner constructively filed a habeas petition in the California Supreme Court, which was denied on December 12, 2012 with a citation to In re Waltreus, 62 Cal.2d 218, 225 (1965). Cooks I, LD 9 & Proof of Service, 10. On August 6, 2013, Petitioner constructively filed another state habeas petition in the California Supreme Court, which was denied on November 13, 2013 with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Clark, 5 Cal.4th 750, 767-769; and In re Swain, 34 Cal.2d 300, 304 (1949). Cooks I, LD 11 & Proof of Service, 12. On April 6, 2015, Petitioner filed a third habeas petition in the California Supreme Court, which was denied on June 10, 2015. (Petition at 4); see also California Appellate Courts Case Information online docket in Case No. S225734.

As previously noted, on February 5, 2013, Petitioner filed a Petition for Writ of Habeas Corpus in this court.[2] Cooks I, Dkt. No. 1. On July 30, 2013, Respondent filed a motion to dismiss based on failure to exhaust any of the grounds in the petition. Id., Dkt. No. 26. On December 5, 2013, Petitioner filed a first amended petition ("FAP"). Id., Dkt. No. 30. On March 18, 2014, Respondent filed a motion to dismiss based on failure to exhaust any of the grounds in the FAP. Id., Dkt. No. 38. On April 4, 2014, Petitioner filed an opposition. Id., Dkt. No. 40. On January 6, 2015, the court issued an Opinion and Order in which it found that Grounds One through Five in the FAP were unexhausted and that Ground Six was exhausted, albeit subject to an argument about procedural default. Id., Dkt. No. 42 at 4-7. Accordingly, the court found the FAP to be mixed and gave Petitioner three options: (1) he could file a motion to stay; (2) he could drop the unexhausted grounds and proceed only on the unexhausted claim; or (3) he could file a request to dismiss the petition without prejudice to return to state court to exhaust his claims. Once the claims had been exhausted, Petitioner would have to file a new federal habeas petition that is fully exhausted. The court warned Petition that "any new federal habeas petition will be subject to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)." The court "expresse[d] no opinion as to whether any subsequent federal habeas petition would be untimely." Id. at 8-9.

On March 9, 2015, Petitioner filed a notice of dismissal pursuant to Fed.R.Civ.P. 41. Id., Dkt. No. 45. On March 11, 2015, the court dismissed the FAP without prejudice and entered judgment. Id., Dkt. Nos. 46-47. In its dismissal order the court again cautioned "Petitioner that any future federal habeas petition will be subject to the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)." Id., Dkt. No. 46.

On June 30, 2015, Petitioner constructively filed the instant petition. ...


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