United States District Court, C.D. California
ORDER TO SHOW CAUSE RE: DISMISSAL FOR
UNTIMELINESS
GAIL
J. STANDISH UNITED STATES MAGISTRATE JUDGE
On July
5, 2016, Petitioner filed a 28 U.S.C. § 2254 habeas
petition in this district ("Petition"). The
Petition stems from Petitioner's October 2010 convictions
in Riverside County Superior Court Case No. SWF018032 for
multiple counts of aggravated sexual assault on a child and
forcible oral copulation on a child (the "State
Conviction"). (Petition at 2.)
Petitioner
appealed the State Conviction. His appeal was unsuccessful
and concluded on February 13, 2013, when the California
Supreme Court denied review. (Petition at 2-3.)[1]
Over a
year and a half later, on September 4, 2014, Petitioner filed
a habeas petition in Riverside Superior Court Case No.
RIC-1408624, which the trial court denied on September 8,
2014. (Petition at 3-4.) Petitioner does not allege that he
filed a habeas petition in the California Court of Appeal,
and the state appellate court's dockets do not show any
such filing.
Several
months later after the trial court denied habeas relief,
Petitioner, through counsel, filed a habeas petition in the
California Supreme Court (Case No. S223593). The California
Supreme Court received the petition on December 5, 2014, but
it was missing a signature. On January 5, 2015, the petition
was formally filed. On March 11, 2015, the California Supreme
Court denied the petition without comment or citation to
authority.
Over 15
months passed. On June 28, 2016, Petitioner mailed the
Petition to the Court, and the Clerk's Office received it
on July 1, 2016. Pursuant to the "mailbox rule, "
the Court will deem the Petition to have been
"filed" on June 28, 2016. See Campbell v.
Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); Rule 3(d)
of the Rules Governing Section 2254 Cases in the United
States District Courts.
THE
PETITION
Grounds
One through Four of the Petition are versions of evidentiary
and instructional error claims that Petitioner raised in his
direct appeal. In Ground One, Petitioner complains that his
convictions are supported only by "generic
testimony" in violation of federal due process. In
Ground Two, Petitioner asserts that, by admitting testimony
about his prior sexual acts with children and allowing the
jury to use such evidence to infer his guilt, the trial court
violated his federal rights to a fair trial, due process, and
equal protection. In Ground Three, Petitioner contends that
he was deprived of his federal rights to due process and a
fair trial, because the jury was allowed to rely on
prejudicial other crimes evidence to support the charged
offenses. In Ground Four, Petitioner complains that the trial
court failed to accurately instruct the jury that the crime
of aggravated sexual assault on a child requires force,
violence, duress, menace, or fear, and this omission violated
his federal rights to due process and a fair trial.
Petitioner
asserts a fifth claim, which he admits he has not raised in
the California Supreme Court. (Petition at 6-7.) As Ground
Five, Petitioner pleads a freestanding "actual
innocence" claim. He alleges that he is innocent of the
crimes of which he was convicted and that his continued
deprivation of liberty violates the Cruel and Unusual
Punishment Clause of the Eighth Amendment. He expressly
states that he bases Ground Five upon his allegations made in
connection with Grounds One through Four - the claims he
raised on direct appeal - and that "[t]here are
‘no new facts.'" (Petition at 7; see also
id.at Attachment 7-a.)
THE
PETITION IS "MIXED"
The
Petition, on its face, is "mixed, " i.e.,
contains an unexhausted claim (Ground Five). Although
Petitioner apparently contends that Ground Five is
"properly exhausted, " because the claim relies
upon the same factual matters alleged in support of Grounds
One through Four, he is mistaken. Ground Five asserts a
wholly different legal theory than the legal theories raised
through Grounds One through Four, and Petitioner admits that
he has not presented the Ground Five legal theory to the
California Supreme Court. As a result, his "actual
innocence" claim is unexhausted. See, e.g., Davis v.
Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (to fairly
present a claim to the California Supreme Court, the
petitioner must describe not only the operative facts but
also the federal legal theory on which the claim is based);
see also Gray v. Netherland, 116 S.Ct. 2074, 2081
(1996).
When a
Section 2254 petition is determined to be mixed, the
petitioner may request to exercise one of various options
potentially available to him, including to dismiss the
unexhausted claim or have one of two types of stay and
abeyance procedures invoked. Rather than proceed down that
route, however, the Court will reserve any further action on
the exhaustion issue, because another, more significant,
defect appears to exist. Namely, for the reasons set forth
below, the Petition, on its face, plainly is untimely.
DISMISSAL
APPEARS WARRANTED DUE TO UNTIMELINESS
The
one-year limitations period that governs the Petition is set
forth in 28 U.S.C. § 2244(d)(1). The California Supreme
Court denied review on February 13, 2013, 1998, and there is
no evidence that Petitioner sought a writ of certiorari in
the United States Supreme Court. Accordingly, for federal
statute of limitations purposes, Petitioner's state
conviction became "final" 90 days later,
i.e., on May 14, 2013. See 28 U.S.C. §
2244(d)(1)(A); Zepeda v. Walker, 581 F.3d 1013, 1016
(9th Cir. 2009). Therefore, Petitioner had until May 14,
2014, to file a timely federal habeas ...