United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner without counsel seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He has filed a
lengthy petition (ECF No. 2) which, for the reasons
identified below, appears to be untimely. Petitioner will be
afforded an opportunity to show cause as to why this petition
should not be recommended for dismissal with prejudice on the
ground that it is untimely. Petitioner has also filed an
application to proceed in forma pauperis, ECF No. 4, which
will be granted.
court must dismiss a habeas petition or portion thereof if
the prisoner raises claims that are legally “frivolous
or malicious” or fail to state a basis on which habeas
relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4
Governing Section 2254 Cases.
conviction underlying this petition occurred on August 1,
2006 in the Sacramento County Superior Court. ECF No. 2 at 9.
Petitioner was convicted on that date of second degree murder
for the killing of his prison cellmate. Id. He was
also convicted of violating Cal. Penal Code §4500
because he was already serving a life sentence at the time he
killed his cellmate. Id. The state court of appeal
affirmed petitioner's convictions and they became final
on September 11, 2008. Id. at 10.
argues that, between 2008 and 2015, he exercised due
diligence by attempting to find counsel willing to represent
him in post-conviction proceedings. Id. His attempts
were unsuccessful. Id. Petitioner also contends
that, on or about January 26, 2015, he learned of the
California Supreme Court's decision in People v.
Chiu, 59 Cal.4th 155, 166 (2014) and its possible
application to his case. ECF No. 2 at 11. In Chiu,
the California Supreme Court held that a conviction for
first-degree premeditated murder could not be based on the
natural and probable consequence theory. 59 Cal.4th at 166.
Petitioner states that, once he learned of the Chiu
decision, he “diligently sought to consolidate case
records connected to both of [his] convictions and prosecute
various matters related to them.” ECF No. 2 at 11.
filed a habeas corpus petition with the California Supreme
Court, which denied the petition on February 24, 2016 with a
citation to People v. Duvall, 9 Cal.4th 464, 474
(1995). ECF No. 2 at 14, 305. A citation to Duvall
generally signifies that a petitioner did not meet his burden
to state fully and with particularity the facts upon which
relief was sought. See 9 Cal.4th at 474.
petitioner filed a second habeas petition with the Sacramento
County Superior Court. ECF No. 2 at 329. It is unclear
precisely what date this petition was filed on, insofar as
the “date” line of the attached exhibit is blank.
Id. at 367. Regardless, this petition was denied by
the superior court in a reasoned decision on May 24, 2016.
Id. at 368-371. Petitioner states that he
subsequently filed a “substantially similar”
petition with the state court of appeal. Id. at 20.
On June 28, 2016, the court of appeal denied that petition as
untimely. Id. Petitioner submitted the same petition
to the California Supreme Court on July 4, 2016, and that
court denied it on November 9, 2016 with citations to In
re Robbins, 18 Cal.4th 770, 780 (1998) and In re
Clark, 5 Cal.4th 750, 767-769 (1993). ECF No. 2 at 23,
440. A summary denial with citations to Clark and
Robbins indicates that the petition was denied as
untimely. See Walker v. Martin, 562 U.S. 307, 313
(2011). Finally, on December 20, 2016, petitioner filed a
petition for writ of certiorari with the United States
Supreme Court. ECF No. 2 at 24. The United States Supreme
Court denied his petition on February 27, 2017. Id.
at 24, 442.
apparent from the face of the petition that it is untimely. A
federal habeas petition must be filed within one year of: (1)
the date the state court judgment became final, either by
conclusion of direct review or the expiration of time to seek
such review; (2) the date on which an impediment to filing
created by state action is removed (if the applicant was
prevented from filing by that action); (3) the date on which
a constitutional right is newly recognized by the Supreme
Court and made retroactive on collateral review; or (4) the
date on which the factual predicate of the claim could have
been recognized through the exercise of due diligence.
See 28 U.S.C. § 2244(d). Here, petitioner
acknowledges that his convictions became final more than
eight years ago on September 11, 2008. ECF No. 2 at 10. This
petition was not filed until May 24, 2017.
argues that he exercised due diligence in the interim by
searching for counsel to represent him in habeas proceedings,
but this does not toll the limitations period because
petitioner is not entitled to counsel in a habeas corpus
action. See Knaubert v. Goldsmith, 791 F.2d 722,
728-29 (9th Cir. 1986). Nor is the court persuaded that the
California Supreme Court's decision in Chiu,
which petitioner claims to have learned of in 2015, supports
a later trigger date for the limitations period. As noted
above, a later accrual date may be found where the United
States Supreme Court recognizes a new, retroactive
constitutional right. See 28 U.S.C. §
2244(d)(1)(C). This later accrual date does not apply to
state supreme court decisions analyzing state law. See
Escalante v. Beard, 2016 U.S. Dist. LEXIS 123440, 2016
WL 4742322, at *4 (S.D. Cal. June 2, 2016) (“To the
extent [petitioner] [relies on] People v. Chiu to
suggest it . . . entitle[s] him to a later start date . . .
such a position would be unavailing. Chiu was a
state supreme court decision that analyzed California state
law, and the alternate start date under 
only applies to rights  recognized by the United States
Supreme Court . . . .”).
also appears to separately argue that his petition is timely
because some of his claims attack the validity of state
habeas procedure. ECF No. 2 at 24. He argues that the
“lack of pre-filing fact development procedures for
indigent pro-per prisoners in California” violates his
constitutional rights. Id at 37. He also claims that
his inability to hire an effective attorney to represent him
violates the equal protection clause because other, wealthier
petitioners can avail themselves of this option. Id
at 37-38. These procedural claims are not cognizable in a
federal habeas petition because they would not, even if
successful, necessarily imply the invalidity of his
convictions. Section § 2254(a) provides that “a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is
in custody in violation of Constitution or laws and
treaties of the United States.” (emphasis added);
see also Hubbart v. Knapp, 379 F.3d 773, 779 (9th
Cir. 2004) (quoting Franzen v. Brinkman, 877 F.2d 26
(9th Cir. 1989) (“[A] petition alleging errors in the
state post-conviction review process is not addressable
through habeas corpus proceedings.”). Even if
petitioner could show ...