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Davis v. C.C.I. Tehachapi Warden

United States District Court, C.D. California

March 6, 2017

DUHAN DAVIS, Petitioner,
C.C.I. TEHACHAPI WARDEN, et al. Respondents.



         On December 29, 2016, Duhan Davis (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1 [“Petition”].) Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a person in state custody “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” As more fully explained below, the present Petition must be dismissed as untimely.

         I. BACKGROUND

         The following facts are taken from the Petition, the Court's own records, or public court records. Where necessary, the Court takes judicial notice of the latter. See Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”).

         On April 30, 2004, Petitioner pled no contest to second degree robbery and voluntary manslaughter in the California Superior Court for Los Angeles County. (Petition at 15, 41.[1]) Petitioner was sentenced to 18 years, and he is currently incarcerated in Tehachapi, California. (Id. at 15.) He did not file a direct appeal. (Id. at 2 ¶ 3.) Petitioner then sought habeas relief in the state courts.

         In reviewing the state habeas petitions, the Court uses the filing dates given by the state courts in their denial orders attached to the Petition, or the filing date given in the public court records available at http://appellatecases. . Petitioner might be entitled to an earlier constructive filing date based on the “mailbox rule, ” which deems a pro se prisoner's filing as constructively filed on the date he delivered it to prison authorities for mailing. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The actual state petitions filed by Petitioner are not in the record, so the Court cannot determine their constructive filing date based on the date of Plaintiff's signature. This does not preclude the Petition's summary dismissal, however, because even assuming a constructive filing date 15 or 20 days earlier than the actual filing date, this would not change the statute of limitations analysis, as discussed further below.

         The state habeas filed by Petitioner are as follows:

Filing Date


Case No.


Aug. 11, 2016 (Petition at 42)

California Superior Court


Denied on Sept. 19, 2016 (Petition at 41-45)

Oct. 11, 2016

(Petition at 47) California Court of Appeal


Summarily denied, Oct. 19, 2016 (Petition at 47)

Oct. 31, 2016

California Supreme Court


Summarily denied on Dec. 14, 2016 (Petition at 49)

         In his current federal Petition, Petitioner argues that he is entitled to relief based on Johnson v. United States, 135 S.Ct. 2551 (2015). (Dkt. 1 at 4; Dkt. 8 at 3.) This appears to be the same argument that he raised in his 2016 state court habeas petitions. (Dkt. 1 at 41-43 [Superior Court order denying habeas petition].)

         On January 17, 2017, the Court ordered Petitioner to show cause why his federal Petition should not be dismissed as untimely. (Dkt. 5 [“OSC”].) Petitioner timely responded. (Dkt. 8.) First, he argues he is entitled to tolling because he only recently became aware of the possibility that Johnson might apply to his California convictions, based on an October 2015 law review article. (Id. at 3, 6-7.) Second, he argues he is entitled to equitable tolling because he had limited access to the prison law library while he was housed in the Administrative Segregation Unit (“ASU”) and/or the Security Housing Unit (“SHU”). (Id. at 7-10.)


         The Ninth Circuit has held that a district court has the authority to raise a statute of limitations issue sua sponte when untimeliness is obvious on the face of a habeas petition, and to summarily dismiss the petition on that ground pursuant to Rule 4 of the Rules Governing Section 2254 Cases, as long as the Court “provides the petitioner with adequate notice and an opportunity to respond.” Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); see also Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

         This action is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that AEDPA applies to cases filed after its effective date of April 24, 1996). AEDPA provides as follows:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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