Hall v. Kernan

          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 ...