United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE JUDGE.
a frequent habeas corpus petitioner in this district, is a
state prisoner proceeding pro se with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
Pending before the court is respondent's motion to
dismiss on the ground that petitioner is barred by the
one-year statute of limitations pursuant to 28 U.S.C. §
2244(d). ECF No. 22. Petitioner has filed an opposition, ECF
No. 24, to which respondent has filed a reply. ECF No. 26.
Petitioner has also filed a sur-reply. ECF No. 27.
review of the petition, petitioner seems to seek relief from
judgment of more than one state court judgment-
petitioner's 2003 conviction and the later resentencing
petition. See ECF No. 1. Rule 2(e) of the Rules
Governing § 2254 Cases states that “[a] petitioner
who seeks relief from judgments of more than one state court
must file a separate petition covering the judgment or
judgments of each court.” The court finds, however,
that even if petitioner were to properly bring the petitions
separately as required, dismissal would be warranted based on
issues of timeliness and a failure to state a cognizable
claim. Moreover, certain case law treats the resentencing
proceeding as simply collateral review of the initial
judgment. See infra. In an abundance of caution, the
undersigned will address both in this Findings and
brings its motion to dismiss entirely on the statute of
limitations, both as to the 2003 conviction and the much
later resentencing proceedings. There is no doubt that review
of the 2003 conviction itself is time barred. Although
respondent's motion to dismiss does not address whether
the petition should be dismissed for failure to state a
cognizable claim as well, the court will address the
successive nature of the petition and, in the alternative,
the merits, insofar as this petition relates to his 2015
resentencing claim. Title 28 U.S.C. section 2244 (b)(1)
prohibits the filing of successive petitions. Finally, Rule 4
of the Rules Governing Section 2254 Cases provides, in
pertinent part: “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” The Advisory Committee Notes to Rule 8 of
those same rules indicate that the court may deny a petition
for writ of habeas corpus, either on its own motion under
Rule 4, pursuant to the respondent's motion to dismiss,
or after an answer to the petitioner has been filed. See
Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).
Accordingly, the court will recommend a dismissal based on
the successive nature of the resentencing, or in the
alternative, reach the merits of the resentencing petition,
and recommend a summary denial.
March 11, 2003, petitioner entered a guilty plea to battery
by an inmate on a non-confined person in Lassen County
Superior Court. Resp't's Lodg. Doc. Nos. 1, 2.
Petitioner was sentenced to an indeterminate sentence of two
years to be served consecutively to his current term.
Id. On November 18, 2003, the California Court of
Appeal, Third Appellate District affirmed the judgement.
Resp't's Lodg. Doc. No. 2. Petitioner did not seek
review in the California Supreme Court.
August 16, 2004, petitioner filed a federal habeas petition
challenging his 2003 conviction, which the undersigned
recommended dismissal for lack of exhaustion.
Resp't's Lodg. Doc. Nos. 27, 28 (Findings and
Recommendations), 29 (Order Adopting the Findings and
Recommendations in Full).
petitioner filed seven state habeas petitions. The first
petition was filed in Lassen County Superior Court on July
19, 2008, and denied on August 15, 2008. Resp't's
Lodg. Doc. Nos. 5, 6. The second petition was filed in the
Superior Court on March 11, 2013, and denied on May 2, 2013.
Resp't's Lodg. Doc. Nos. 7, 8. The third petition was
also filed in the Superior Court on May 7, 2013, and denied
on July 10, 2013. Resp't's Lodg. Doc. Nos. 9, 10.
Petitioner filed his fourth petition in the California Court
of Appeal, Third Appellate District on May 15, 2013, and was
denied on June 13, 2013. Resp't's Lodg. Doc. Nos. 11,
12. The fifth petition was filed in the California Court of
Appeal, Third Appellate District on August 13, 2013, and
denied on August 29, 2013. Resp't's Lodg. Doc. Nos.
13, 14. The sixth petition was filed in the California
Supreme Court on September 10, 2013, and denied on October
16, 2013. Resp't's Lodg. Doc. Nos. 15, 16. The
seventh petition was filed in the California Court of Appeal,
Third Appellate District on February 24, 2015, and denied on
March 19, 2015. Resp't's Lodg. Doc. Nos. 17, 18.
October 20, 2015, petitioner filed a petition for
resentencing pursuant to Proposition 47 (Pen. Code §
1170.18) in Lassen County Superior Court. Resp't's
Lodg. Doc. No. 19. The Superior Court found petitioner
ineligible for resentencing under Proposition 47 on December
16, 2015. Resp't's Lodg. Doc. No. 20. Petitioner
appealed to the California Court of Appeal on January 28,
2016, which affirmed the resentencing judgment on October 17,
2016. Resp't's Lodg. Doc. Nos. 23, 24. See also
People v. McKinney, 2016 WL 6068207 (Cal.App. 2016).
Petitioner filed for review in the California Supreme Court
on October 26, 2016, and was denied on December 21, 2016.
Resp't's Lodg. Doc. Nos. 25, 26. More will be said on
these proceedings, infra.
to all the confusion here, petitioner also made direct review
appeals of other resentencing proceedings, see People v.
McKinney, 2016 WL 447054 (Cal.App. 2016), People v.
McKinney, 2017 WL 5248193 (Cal.App. 2017), but those
proceedings are irrelevant to the petition before this court.
instant action was filed on March 17, 2017.
Statute of limitations
April 24, 1986, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (hereinafter
“AEDPA”). Pursuant to 28 U.S.C. §
2244(d)(1), AEDPA imposes a one-year statute of limitations
for federal habeas corpus petitions. 28 U.S.C.
§2244(d)(1) provides, in pertinent part:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation ...