United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY
E. SCOTT United States Magistrate Judge
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].) 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).
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.
underlying facts are taken from the unpublished California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).
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
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.
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
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,