United States District Court, C.D. California
Present: The Honorable Steve Kim, U.S. Magistrate Judge.
CIVIL MINUTES - GENERAL
CHAMBERS) ORDER TO SHOW CAUSE
November 14, 2017, Petitioner constructively filed a petition
for writ of habeas corpus under 28 U.S.C. § 2254
challenging his 1997 convictions for robbery, sexual battery,
and rape. (Pet., ECF No. 1). On its face, the Petition
appears untimely, procedurally defaulted, unexhausted, and
impermissibly second and successive. Therefore, Petitioner is
ordered to show cause why the Petition should not be
summarily dismissed on any or all of these grounds.
the Petition is facially untimely by 17 years. On direct
appeal, the California Supreme Court denied review on August
11, 1999, and because Petitioner did not file a petition for
certiorari to the U.S. Supreme Court, his conviction became
final 90 days later, on November 9, 1999, at the expiration
of the time for filing for a petition for certiorari. (Pet.
at 3). From that date, Petitioner had one year - by no later
than November 9, 2000 - in which to file a timely federal
petition. See 28 U.S.C. § 2244(d)(1)(A). No
statutory tolling appears available because Petitioner did
not file his first state habeas petition until after 2001.
See 28 U.S.C. § 2244(d)(2). Even if
“properly filed” under California law, that state
habeas petition and any filed thereafter could not revive or
reinitiate the federal limitations period that ended in 2000.
See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th
Cir. 2003). Therefore, the Petition appears barred as
untimely, unless Petitioner can demonstrate that he is
entitled to delayed commencement of the limitations period
under § 2254(d)(1) or equitable tolling.
the Petition is facially foreclosed by procedural default. In
the last state court decision on Petitioner's most recent
round of state collateral review, the California Supreme
Court denied the petition with citation to In re
Robbins, 18 Cal.4th 770, 780 (1998), on the ground that
the petition was untimely, and to In re Clark 5
Cal.4th 750, 767-69 (1993), on the ground that the petition
was successive. Federal courts may not reach an alleged
violation of federal law on habeas review if the state
court's decision rests on an independent and adequate
state procedural ground, unless the prisoner can demonstrate
cause for the procedural default and actual prejudice.
See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In re Clark's bar on successive petitions has
been treated as an independent and adequate state ground,
prohibiting federal habeas review, see, e.g., Briggs v.
State, No. 15-CV-05809-EMC, 2017 WL 1806495, at *6 (N.D.
Cal. May 5, 2017), as has In re Robbins, see
Walker v. Martin, 562 U.S. 307, 315-320 (2011)
(adequate); Bennett v. Mueller, 322 F.3d 573, 582-83
(9th Cir. 2003) (independent). Thus, the Petition appears
procedurally defaulted, unless Petitioner can show cause for
the default and actual prejudice.
it is clear from the face of the Petition that Petitioner has
not exhausted his remedies in state court for each claim
raised. A federal court may not grant habeas relief to a
person held in state custody, unless he has exhausted
available state court remedies by fairly presenting his
federal claims to the California Supreme Court. See
28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese,
541 U.S. 27, 29 (2004). The Petition appears to contain both
exhausted and unexhausted claims, rendering it
“mixed” and subject to mandatory dismissal as a
mixed petition. See Rose v. Lundy, 455 U.S. 509,
the Petition is facially precluded by the bar to
second-and-successive federal petitions. See 28
U.S.C. § 2244(b)(3)(A). Petitioner previously filed a
federal petition in 2002 (see Case No.
2:02-cv-04747), which was denied by this Court as untimely in
2003, after which the Ninth Circuit denied a certificate of
appealability in 2003 (see Case No. 03-56317) and a
request to file a second and successive petition in 2005
(see Case No. 04-74134). Because Petitioner
previously sought federal habeas relief under § 2254 and
the claims in the Petition could have been brought in that
first petition, he must obtain authorization from the Ninth
Circuit before filing a second and successive petition in
federal court. Petitioner does not allege that he has
obtained such authorization, and indeed the record reflects
that the Ninth Circuit has previously denied such
authorization. Thus, the Petition appears to be an
impermissible second and successive petition that divests the
district court of jurisdiction.
Petitioner is ORDERED TO SHOW CAUSE on or
before December 21, 2017 why this
action should not be dismissed as untimely, procedurally
defaulted, unexhausted, and/or improperly second and
successive. If Petitioner is unable to demonstrate that the
Petition is timely, not procedurally defaulted, and
authorized by the Ninth Circuit, the Petition may be
summarily dismissed. Even if Petitioner can overcome those
grounds for dismissal, he must also show that each of his
claims is exhausted, or he must either exhaust all claims in
state court or proceed only with the exhausted claims.
Failure to file a timely response to this Order to
Show Cause may also result in dismissal of this action for
failure to prosecute. See Fed. R. Civ. P
41(b); L.R. 41-1. If Petitioner no longer wishes to pursue
this action, he may voluntarily dismiss the action pursuant
to Federal Rule of Civil Procedure 41(a) by filing a
“Notice of Dismissal.”
 The Court takes judicial notice of the
public records of Petitioner's direct appeals, state
habeas petitions, and prior federal habeas petition. See
Smith v. Duncan, 297 ...