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Mack v. Baughman

United States District Court, C.D. California

April 11, 2017

ANTHONY E. MACK, Petitioner,
DAVID BAUGHMAN, Warden, Respondent.




         On June 13, 2016, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) in the Eastern District of California (“Eastern District”). (Dkt. No. 1.) On September 13, 2016, the Eastern District transferred the Petition to this Court. (Dkt. No. 10.) On October 5, 2016, the Court ordered Petitioner to file a First Amended Petition in which he identifies the date, location, and nature of his conviction and the length of his sentence and provides a short plain statement of each ground for habeas relief. (Dkt. No. 13.) On January 9, 2017, after several extensions of time, Petitioner filed the First Amended Petition (the “FAP”). (Dkt. No. 22.) On February 1, 2017, the Court ordered Petitioner to show cause why the action should not be dismissed as untimely. (Dkt. No. 26.) On February 27, 2017, Petitioner filed his Response to the Court's February 1, 2017 Order to Show Cause (“OSC Response”). (Dkt. No. 27.)

         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. For the reasons set forth below, the action must be, and is, DISMISSED as untimely, pursuant to 28 U.S.C. § 2244(d) and Rule 4.


         According to the FAP, Petitioner challenges his July 5, 1984, March 8, 1985, and October 21, 1994 convictions as well as a February 13, 2002 sentencing decision. (FAP at 2.) Petitioner states that he is serving a sentence of “eight years, plus two life sentences.” (Id.)

         Petitioner states that he appealed his October 21, 1994 conviction in case number C079359, which correlates with the case number for a habeas petition Petitioner filed in the California Court of Appeal on June 1, 2015. (Compare FAP at 2 with Docket (Register of Actions), In re Anthony Edward Mack on Habeas Corpus, No. C079359 (Jun. 4, 2015), available at[1] Petitioner also states that, in April 2016, he filed a Petition for Review in the California Supreme Court. (FAP at 3.) However, this Court's independent review of the California state courts' website indicates that Petitioner did not initiate any case in the California Supreme Court following the California Court of Appeal's denial of his June 2015 habeas petition. Neither the FAP nor the OSC Response identifies any other relevant state proceedings on either direct or collateral review. On June 13, 2016, Petitioner filed the instant Petition.

         Petitioner characterizes his claims for federal habeas relief as follows: (1) a Fourth Amendment claim based on Petitioner's continued incarceration and a California Department of Corrections and Rehabilitation Legal Processing Unit “shadow policy”; (2) a Double Jeopardy claim; (3) a claim under the Fifth and Sixth Amendments concerning Petitioner's right to be present with court appointed counsel at any court hearings concerning his sentence; (4) an Equal Protection and Due Process claim concerning “invidious race-based discriminatory practices” and “arbitrary unlawful ministerial practices;” and (5) an Eighth Amendment cruel and unusual punishment claim. (FAP at 5-6.)


         I. The Statute Of Limitations

         This action is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The “statutory purpose” of the one-year limitations period is to “encourag[e] prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). Where, as here, the petitioner's most recent conviction was finalized before AEDPA's enactment, the one-year statute of limitations began to run on April 24, 1996, the date AEDPA was signed into law. Id. at 217; Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1010 (9th Cir. 2009).

         The one-year limitations period set forth in 28 U.S.C. § 2244(d)(1) is subject to a statutory tolling provision, which suspends it for the time during which a “properly-filed” application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in certain “extraordinary circumstances” beyond a prisoner's control, equitable tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010).

         II. The ...

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