United States District Court, C.D. California
Present: The Honorable Shashi H. Kewalramani, United States
(In Chambers) Order to Show Cause Why This Action Should Not
be Dismissed As Untimely
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
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.
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,
State Court Proceedings
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Superior Court is set forth in the unpublished Court of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 ...