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Patterson v. Grounds

United States District Court, C.D. California

January 30, 2017

NORICE D. PATTERSON, Petitioner,
v.
RANDY GROUNDS, Respondent.

          ORDER: DISMISSING PETITION WITH PREJUDICE

          PERCY ANDERSON UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         On May 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.) On May 16, 2016, the Court warned Petitioner that the Petition was incomplete and defective because, inter alia, it failed to clearly state the date of Petitioner's conviction, the length of his sentence, the number, timing, and nature of his state court challenges to his conviction and/or sentence, and the number and nature of his claims for federal habeas relief. (Dkt. No. 3.) As a result of these defects, the Court could not determine whether the Petition was timely and whether Petitioner had a cognizable claim for relief. The Court ordered Petitioner to remedy these defects in a First Amended Petition (“FAP”) that was due no later than May 31, 2016. (Id.) Petitioner subsequently requested four extensions of time to file a First Amended Petition, resulting in Petitioner having until October 19, 2016 to file the FAP. (Dkt. No. 15.)

         Despite having more than five months to prepare and file a FAP and being expressly warned that his failure to comply with the Court's October 19, 2016 deadline would result in a recommendation of dismissal, on October 27, 2016, Petitioner sought a fifth extension of time to file a First Amended Petition. (Dkt. No. 18.) In response to Petitioner's repeated noncompliance with court orders and failure to diligently prosecute his case, on November 1, 2016 United States Magistrate Judge Karen L. Stevenson filed a Report and Recommendation (the “Report”) in which she recommended dismissing the action without prejudice. (Dkt. No. 21.) However, the Court suggested that, if Plaintiff filed a First Amended Petition before his deadline for Objections to the Report, the Court might withdraw the Report. (Id. at 4 n.1.)

         On November 28, 2016, Petitioner filed an unsigned First Amended Petition. (Dkt. No. 24.) Accordingly, on December 12, 2016, the Court issued an Order both withdrawing the Report and Recommendation and notifying Petitioner that the FAP was unsigned and the action subject to dismissal because the Petition was facially untimely. (Dkt. No. 25.) The Court ordered Petitioner to show cause for proceeding with his case by filing, no later than January 9, 2017: (1) a signed signature page for the FAP; and (2) a Response containing specific factual allegations establishing that either the Petition is timely or Petitioner diligently pursued his rights but an extraordinary circumstance prevented him from timely filing the Petition. (Dkt. No. 25.) The Court warned Petitioner that his failure to timely comply with the December 12, 2016 Order could result in dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”). (Id.)

         On December 21, 2016, Petitioner filed a signed signature page for the FAP but did not file the required Response to the Court's December 12, 2016 Order. (Dkt. No. 26.) More than two weeks have now passed since Petitioner's deadline for filing a Response to the Court's December 12, 2016 Order, and Petitioner has neither filed the required Response nor otherwise communicated with the Court about his case.

         As the Court's December 12, 2016 Order informed Petitioner, Rule 4 of the 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. For the reasons set forth below, the Petition must be, and is, DISMISSED as untimely, pursuant to 28 U.S.C. § 2244(d) and Rule 4.

         PRIOR PROCEEDINGS

         Petitioner was convicted in June 2004 of five counts of home invasion robbery (California Penal Code (“Penal Code”) § 211) and one count of being a felon in possession of a firearm (Penal Code § 12021(a)(1) recodified at Penal Code § 29800(a)(1)). (FAP at 2); see also People v. Patterson, No. B177067, 2005 Cal.App. Unpub. LEXIS 5294 (Jun. 20, 2005). On July 23, 2004, the trial court sentenced Petitioner to a prison sentence of 56 years and 4 months. (FAP at 2); People v. Patterson, No. B177067, 2005 Cal.App. Unpub. LEXIS 5294 (Jun. 20, 2005). Petitioner appealed to the California Court of Appeal, which vacated Petitioner's sentence and remanded to the trial court for resentencing. (FAP at 2-3); People v. Patterson, No. B177067, 2005 Cal.App. Unpub. LEXIS 5294 (Jun. 20, 2005). On October 5, 2005, the trial court held a resentencing hearing and reduced Petitioner's aggregate sentence to 43 years in state prison. See People v. Patterson, No. B251202, 2014 Cal.App. Unpub. LEXIS 4510 (Jun. 26, 2014). Petitioner did not appeal.

         According to Petitioner's filings and the Court's review of the California Appellate Courts website, [1] Petitioner waited more than two years after his resentencing to begin filing state habeas petitions. First, on February 4, 2008, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, 2nd Appellate District, and the California Court of Appeal denied that petition on February 21, 2008. See Docket (Register of Actions), Patterson v. The People et al, No. B205422 (Feb. 21, 2008), available at http://appellatecases.courtinfo.ca.gov. Second, on March 20, 2008, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. See Docket (Register of Actions), Patterson (Norice) on H.C., No. S161906 (Aug. 27, 2008), available at http://appellatecases.courtinfo.ca.gov. The California Supreme Court denied that petition on August 27, 2008. See id.

         In July 2013, Petitioner filed in the trial court a “Motion to Vacate the Judgment” and a “Motion for Correction of the Record in the Trial Court, ” which challenged the trial court's October 5, 2005 resentencing order. See People v. Patterson, No. B251202, 2014 Cal.App. Unpub. LEXIS 4510 (Jun. 26, 2014). The trial court issued a minute order dated August 7, 2013 that indicated it was taking no action with respect to Petitioner's two motions. Id. Petitioner appealed the trial court's decision and contended that the trial court erred by failing to calculate his custody credits at the time of resentencing. People v. Patterson, No. B251202, 2014 Cal.App. Unpub. LEXIS 4510 (Jun. 26, 2014). On June 26, 2014, the California Court of Appeal held that the trial court's order denying Petitioner's motion to vacate the judgment was not an appealable order but also ordered that the abstract of judgment be corrected to accurately reflect Petitioner's custody credits at the time of resentencing. Id.

         The following year, Petitioner filed a Petition for Writ of Habeas Corpus in the Los Angeles County Superior Court. (Petition at 21.)[2] On May 27, 2015, the superior court denied the petition on procedural grounds, stating that the petition failed to state a prima facie case for relief and, inter alia, was not timely filed. (Petition at 21-22; see also FAP at 3-4.)

         On October 1, 2015, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. (FAP at 4); Docket (Register of Actions), In re Norice Patterson on Habeas Corpus, No. B267194 (Oct. 8, 2015), available at http://appellatecases.courtinfo.ca.gov. The California Court of Appeal denied the petition on October 8, 2015, stating, inter alia, that Petitioner failed to justify his delay in filing the petition. Id.; (see also Petition at 24).

         On January 11, 2016, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. Docket (Register of Actions), Patterson (Norice) on H.C., No. S231751 (Apr. 13, 2016), available at http://appellatecases.courtinfo.ca.gov. The California Supreme Court denied relief on April 31, 2016 with citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Dixon, 41 Cal.2d 756, 759 (1953), indicating, inter alia, that the petition was untimely. Id.; see also Walker v. Martin, 562 U.S. 307, 313 (2011) (“A summary denial citing . . . ...


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