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Straus v. Hatton

United States District Court, C.D. California

May 16, 2017

Mark Vincent Straus
v.
Shawn Hatton

          Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

         On May 1, 2017 Petitioner, a California state prisoner proceeding pro se, constructively filed a Petition For Writ Of Habeas Corpus By A Person In State Custody (“Petition”) pursuant to 28 U.S.C. § 2254.[1] (Dkt. No. 1.) According to the Petition, Petitioner was convicted on March 31, 1998 of arson, accessory after the fact to robbery and sentenced pursuant to California's Three Strikes law. (Petition at PageID 2, 9.)[2]

         The procedural history of Petitioner's direct appeal and his efforts for collateral review is unclear. For example, the Petition indicates that Petitioner appealed to the California Court of Appeal, but he has neither specified the case number nor the grounds raised which he deems “unknown.” (Pet. at PageID 2.) The Court is unable to locate a record of any direct appeal on the website of the California courts.

         Additionally, according to the Petition and its attachments, Petitioner filed a habeas petition in the Los Angeles superior court (which he sometimes refers to as the “appellate court, ” compare Petition at PageID 1 to id. at PageID 3) in case number “455778, ” raising three grounds: (1) newly discovered evidence, (2) People v. Vargas dealing with prior strikes, and (3) prior convictions tried in the same court/trial. (Id. at PageID 4.) Elsewhere in attachments to his Petition, Petitioner states that he filed a habeas petition challenging the sentence at issue in a state “lower court, ” (i.e. the Superior Court of Santa Barbara) on February 25, 2015, and references a reasoned denial by that court dated April 24, 2015. (Petition at PageID 10; but see id. at PageID 11 referencing renewed motion for re-sentencing denied on April 28, 2015.)

         Petitioner then presented the same grounds in a habeas petition to the California Supreme Court on August 27, 2015 (see http://appellatecases.courtinfo.ca.gov). The state supreme court summarily denied relief on November 18, 2015. Id. (See also In re Straus, No. S228889, 2015 Cal. LEXIS 9500 (Cal. Nov. 18, 2015).) Seventeen and a half months later, Petitioner filed the instant Petition, which purportedly raises three-sentencing-related-grounds for relief, although only two are specified in any detail.

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires the 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.” The Court has identified several defects in the Petition that warrant dismissal, including untimeliness, lack of clarity, and non-cognizable claims.

         I. Untimeliness

         The Antiterrorism Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one year statute of limitations on claims challenging state court convictions or sentences. 28 U.S.C. § 2244(d)(1). For pre-AEDPA convictions, the one year statute of limitations begins to run from the April 1996 implementation of AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). In the present case, Petitioner was required to file his federal habeas petition within one year from the latest of:

(A) the date on which the underlying judgment became final through either the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable constitutional right was first recognized by the United States Supreme Court; or
(D) the date on which the factual predicate underlying a claim could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). Here, it is unclear whether Petitioner sought direct review of his conviction. Although Petitioner indicates that he appealed to the California Court of Appeal (see Petition at PageID 2), he does not know the case number, grounds raised, and writes “N/A” for the date of decision (id. at PageID 3). Petitioner's failure to specifically identify any direct appeal suggests that the conviction or sentence at issue became final in 1998. See Cal. Rules of Court 8.104(a)(1) (listing the deadlines for filing a notice of appeal). Although Petitioner briefly references “Newly Discovered Evidence” as a grounds for relief raised on state collateral review, he does not elaborate further on the issue and proposes no alternative commencement date for the statute of limitations under 28 U.S.C. § 2244(d)(1)-on the basis of newly discovered evidence or otherwise. Absent an alternative commencement date, the statute of limitations commenced running in 1998 and, absent tolling, it expired one year later in 1999 - approximately 18 years before Petitioner constructively filed the Petition on May 1, 2017. See Patterson, 251 ...


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