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Harnish v. Martell

United States District Court, C.D. California

May 2, 2018

DARRYL EUGENE HARNISH, Petitioner,
v.
MICHAEL MARTELL, Warden, Respondent.

          ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY

          KAREN E. SCOTT United States Magistrate Judge

         I.

         INTRODUCTION

         On March 29, 2018, Darryl Eugene Harnish (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1 at 20 [signature date].[1]) Petitioner is a California state prisoner currently serving a sentence of 85 years to life after a jury convicted him of first degree murder, attempted murder of a peace officer, and assault on a peace officer with a semi-automatic firearm. People v. Harnish, 2016 Cal.App. Unpub. LEXIS 5336, at *1 (July 20, 2016).

         Pursuant to Rule 4 of the Rules Governing § 2254 Petitions, the Court may raise sua sponte the issue of whether the petition is timely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Day v. McDonough, 547 U.S. 198, 202 (2006); Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004). The Court therefore orders Petitioner to show cause in writing on or before June 4, 2018, why the Petition should not be dismissed as untimely.

         II.

         FACTUAL BACKGROUND

         The underlying facts are taken from the unpublished California Court of Appeal decision on Petitioner's direct appeal. People v. Harnish, No. B263412, 2016 Cal.App. Unpub. LEXIS 5336 (July 20, 2016). Unless rebutted by clear and convincing evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1).

         Prosecution Evidence

         On April 19, 2012, around midnight, Darryl Brown and Terry Alexander were at a bus stop bench at Pacific Avenue and Pacific Coast Highway in Long Beach. From across the street at a Mobil gas station, defendant (who is Caucasian) yelled racial slurs and said, “I'll kill all you motherfuckers.” Alexander rode his bicycle across the street. As Alexander approached, defendant pulled out a gun and shot him twice. Alexander, fatally wounded, fell near the gas pumps.

         Long Beach Police Officer Arthur Vega heard the gunshots and drove to the scene. He saw Alexander's wounded body at the gas station and defendant walking north on Pacific Avenue. Officer Vega drove toward defendant, and shined his search light at him. Defendant then pulled out a gun and fired twice, striking the hood and windshield of the patrol car. Defendant continued to walk out of Officer Vega's sight.

         A witness, Silverio Perez, observed defendant change magazines in his firearm. Officer Vega and a back-up officer, Officer Diaz, located defendant and ordered him to stop and put his hands up. Defendant put his gun down for a moment, but then picked it up and ran. As the officers pursued, defendant turned toward the officers. They fired, wounding defendant, and he fell to the ground. In a subsequent search, police found a .45 caliber semi-automatic handgun in defendant's possession, and an extra magazine in his pocket. Cartridge cases found at the murder scene and the scene of the shooting at Officer Vega, as well as bullet fragments from Officer Vega's car, were matched by a ballistics expert to defendant's firearm.

         Defense

         Defendant, who was 67 years old, testified that he lived in the area of the Mobil station, had experienced several incidents in Long Beach in which he was threatened by other people on the street, and that he carried a handgun for protection. On the night of the shooting, he was returning home from buying a half-pint of rum when Alexander rode up on his bicycle. From perhaps 18 feet away, Alexander said that he was going to kick defendant's “mother-fucking ass.” Believing he was about to be robbed or beaten, defendant pulled out his gun and shot Alexander twice. Defendant panicked and started walking home. When Officer Vega arrived, ...


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