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Jones v. C.E. Ducart

United States District Court, C.D. California

July 25, 2016

Jones
v.
C.E. Ducart

          Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge.

          (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

          The Honorable: Karen L. Stevenson, United States Magistrate Judge.

         On July 12, 2016, Petitioner, a California state prisoner proceeding pro se, filed a Petition For Writ Of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) According to the Petition, Petitioner is serving an aggregate term of 42 years in state prison resulting from a December 31, 2013 conviction for robbery, assault with a firearm, and criminal threat. (Cal. Penal Code §§ 211, 245 (B) and 422 (A)). (Pet. at 2.) Petitioner appealed the conviction to the California Court of Appeal (case no. B253050), raising the “sole contention . . . that he was denied due process and the effective assistance of counsel as a result of the trial court’s denial of his request for advisory counsel.” People v. Jones-Bey, 2014 Cal.App. Unpub. LEXIS 8239, *1 (Cal.App. 2d Dist. Nov. 20, 2014). The state appellate court affirmed the conviction on November 20, 2014. (See id; http://appellatecases.courtinfo.ca.gov). Subsequently, Petitioner filed a petition for review in the California Supreme Court raising the same claim (case no. S223673). (http://appellatecases.courtinfo.ca.gov.) The state supreme court summarily denied review on February 18, 2015. People v. Jones-Bey, 2015 Cal. LEXIS 1074 (Cal. Feb. 18, 2015). Petitioner’s conviction became final on May 19, 2015. Petitioner did not seek collateral relief in California courts.

         The Petition asserts four claims, albeit under a single ground and arising from common facts. Specifically, Petitioner alleges that (1) his Sixth Amendment right to effective counsel, (2) Fourteenth Amendment right to due process, (3) Fifth Amendment right to a fair trial, and (4) Sixth Amendment right to present a defense, were violated when the California superior court denied Petitioner’s pre-trial motion for advisory counsel. (Pet. at 5.) Petitioner contends that after he successfully dismissed his court-appointed counsel, he filed a handwritten pre-trial motion to appoint advisory counsel, and the trial court erred when it “failed to exercise its discretion, as it was required to when it denied petitioner’s hand written motion, ” despite being “worried about petitioner’s future.” (Pet. Continued Facts at 3.) Petitioner attaches excerpts from the pre-trial transcript wherein the trial court expresses concern that “self-represented litigants almost never get a fair trial because they don’t know how to defend themselves in court, ” but remarking that it was petitioner’s choice to leave the “very, very skilled lawyer representing [Petitioner] at one point” nevertheless declines to appoint advisory counsel because Petitioner did “not have a right to advisory counsel as a matter of law.” (RT at D-7-D-8 referencing People v. Bigelow, 37 Cal.3d 731, 742 (1984).) Petitioner alleges that, therefore, his right to effective counsel, due process, fair trial, and to present a defense under the Sixth, Fourteenth, Fifth and Sixth Amendments (respectively) were violated. (Pet. Continued Facts at 3.)

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition without ordering a responsive pleading where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Habeas Rule 4. Here, the Petition suffers from defects that do not permit the claim alleged to proceed. First, the Petition appears untimely on its face. Second, to the extent that Petitioner seeks to raise constitutional claims that were not raised before the California Supreme Court, the Petition is subject to dismissal for lack of exhaustion.

         I. The Petition is Untimely

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. (MTD at 2-3); Wall v. Kholi, 562 U.S. 545, 550 (2011); accord Lawrence v. Florida, 549 U.S. 327, 329 (2007); 28 U.S.C. § 2244(d)(1). The limitations period is triggered and begins to run from the latest of:

(A) the date on which the underlying judgment became final through either the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable constitutional right was first recognized by the United States Supreme Court; or
(D) the date on which the factual predicate underlying a claim could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

         Under Section 2244(d)(1)(A), Petitioner’s conviction became final on May 19, 2015, i.e, 90 days after the California Supreme Court denied review. Petitioner does not allege, and the Court discerns no basis for finding, that Petitioner is entitled to a later tolling date based on Subsections B, C, or D. Accordingly, the limitations period under AEDPA expired on May 19, 2016. The instant Petition was filed on July 12, 2016, after the statutory limitations period expired. Absent some basis for tolling, the instant Petition is untimely.[1]

         II. The Petition is Potentially ...


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