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McKinney v. Pfeiffer

United States District Court, C.D. California

June 21, 2019

Robert Harold McKinney
v.
Christian Pfeiffer

          Present: The Honorable Shashi H. Kewalramani, United States Magistrate Judge.

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why This Action Should Not be Dismissed As Untimely

         I. SUMMARY

         Petitioner Robert Harold McKinney (“Petitioner”), proceeding in forma pauperis and pro se, signed and subsequently filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2254. Electronic Case Filing Number (“ECF No.”) 1, Pet. The Petition was originally mailed on March 31, 2019 and was subsequently received by the Ninth Circuit Court of Appeals. Id. at 1. That court transferred the matter to this Court on June 14, 2019. ECF No. 2, Order of Transfer. The Petition, as best as can be understood, sets forth the following grounds for habeas relief: (1) Sixth Amendment confrontation clause; (2) Due Process right to fair trial; (3) Due Process - error in denying motion to suppress; (4) Fundamental miscarriage of justice; and (5) Felony Murder Rule (collectively, the “Habeas Grounds”). ECF No. 1, Pet. at 3. In support of the Habeas Grounds, Petitioner cites to Senate Bills 1437, 1393, 1392, 1279; Penal Code 1170.18(a); the Sixth Amendment; and People v. Sumstine, 36 Cal.3d 909 (1984) and Gonzales v. State of California, 68 Cal.App.3d 621 (1977). Id. at 4.

         Petitioner states that none of these grounds were raised or ruled upon by the state court. Id. Based on this Court's review of the docket, however, there was a direct appeal to the California Supreme Court, which was denied on June 26, 2013 and was assigned case number S210241.

         A bigger issue appears to be whether the current habeas petition was filed in a timely manner. As explained in more detail below, the Petition appears untimely because it was filed well after the one-year deadline under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). However, before this Court makes a final decision whether the matter can go forward, this Court will give Petitioner an opportunity to provide any information he may have regarding exhaustion and the timely filing of this Petition. Therefore, this Court issues this Order to Show Cause (“OSC”) why this action should not be dismissed as untimely. Petitioner's response is required no later than July 22, 2019.

         II. BACKGROUND

         A. State Court Proceedings

         A summary of the trial proceedings in the San Bernardino County Superior Court is set forth in the unpublished Court of Appeal opinion in this matter. People v. McKinney, Case No. E05322, 2013 WL 1281559 (Cal.Ct.App. March 29, 2013). The Court of Appeal provided as follows:

Defendant's first two trials resulted in hung juries. In his third trial, the jury found defendant guilty on one count of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and one count of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)). On both counts, the jury found a firearm enhancement (Pen. Code, § 12023.53, subds. (c) [as to attempted murder] & (d) [as to murder]) and a gang enhancement (Pen. Code, § 186.22, subd. (b)) true.
Defendant was sentenced to a total of 85 years to life in prison, plus the usual fines and fees.
Defendant now contends that:
1. The trial court erred by admitting the surviving victim's identification of him as the shooter, because it was the product of an impermissibly ...

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