United States District Court, C.D. California
ANTHONY E. MACK, Petitioner,
DAVID BAUGHMAN, Warden, Respondent.
ORDER: DISMISSING PETITION WITH PREJUDICE
D. PREGERSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.)
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
http://appellatecases.courtinfo.ca.gov.) 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.
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.)
The Statute Of Limitations
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).
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).