United States District Court, C.D. California
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS AS UNTIMELY
S. FISCHER UNITED STATES DISTRICT JUDGE.
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.
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.”).
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,
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.
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.
courtinfo.ca.gov/ . 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
state habeas filed by Petitioner are as follows:
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)
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].)
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.)
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).
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 ...