United States District Court, C.D. California
NORICE D. PATTERSON, Petitioner,
RANDY GROUNDS, Respondent.
ORDER: DISMISSING PETITION WITH PREJUDICE
ANDERSON UNITED STATES DISTRICT JUDGE.
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.)
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.)
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.)
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.
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.
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.
to Petitioner's filings and the Court's review of the
California Appellate Courts website,  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.
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
following year, Petitioner filed a Petition for Writ of
Habeas Corpus in the Los Angeles County Superior Court.
(Petition at 21.) 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.)
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).
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 . . .