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Russell v. Vasquez

United States District Court, C.D. California

July 1, 2019

JOHN C. RUSSELL, Petitioner,
v.
FELIX VASQUEZ, Respondent.

          ORDER TO SHOW CAUSE

          HONORABLE AUTUMN D. SPAETH UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) filed by John C. Russell (“Petitioner”), a California state prisoner. [Dkt. No. 1');">1]. The Court's review of the Petition, the Court's own records, and public records reveals that the Petition appears to be untimely and that one of Petitioner's grounds for relief is moot.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] For the reasons discussed below, Petitioner is ORDERED TO SHOW CAUSE in writing within twenty-eight (28) days of the service of this Order why the instant Petition should not be dismissed with prejudice because it is time-barred and whether Petitioner's fifth ground for relief should be dismissed as moot.

         II. RELEVANT BACKGROUND

         On March 5, 201');">19, Petitioner constructively filed the instant Petition pursuant to Title 28 United States Code Section 2254. [Dkt. No. 1');">1]. The Petition challenges a 201');">14 conviction, in which a jury convicted Petitioner of first-degree murder in Ventura County Superior Court, trial court case number 201');">120271');">191');">1. [Id., p. 2].[2] Petitioner now raises the following five grounds for relief:

         1');">1. The trial court prejudicially erred in violation of state laws by allowing DNA testing without first holding a required Kelly Prong One hearing, which violated Petitioner's due process rights because the testing methods were not approve by the DNA scientific community;

         2. The trial court prejudicially erred in violation of state laws by allowing DNA testing without first holding a required Kelly Prong Three hearing, which violated Petitioner's due process rights because the DNA evidence was not reliable according to the DNA scientific community;

         3. The trial court abused its discretion by excluding evidence that circumstantially linked a third-party to the murder and raised a reasonable doubt about Petitioner's guilt;

         4. The cumulative prejudice from the trial court's errors violated Petitioner's rights under state law and the due process clause of the Fourteenth Amendment; and

         5. Petitioner received ineffective assistance of counsel because his trial counsel failed to object when the trial court imposed a $1');">10, 000 restitution, in violation of the state constitution and the Sixth and Fourteenth Amendments (“Ground Five”). [Dkt. No.1');">1, pp. 5-7].

         III. THE PETITION APPEARS TO BE UNTIMELY

         A. The Petition is Facially Untimely

         The Antiterrorism and Effective Death Penalty Act of 1');">1996 (“AEDPA”) establishes a one-year limitation period for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1');">1); see also Wall v. Kholi, 562 U.S. 545, 550 (201');">11');">1); Jimenez v. Quarterman, 1');">11');">13');">555 U.S. 1');">11');">13, 1');">11');">14 (2009). The limitation period begins to “run from the latest of” four specified dates, including “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1');">1)(A). The period of direct review for the purposes of AEDPA's limitation period “includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court.” Bowen v. Roe, 1');">188 F.3d 1');">11');">157');">1');">188 F.3d 1');">11');">157, 1');">11');">158-59 (9th Cir. 1');">1999); see Sup. Ct. R. 1');">13 (allowing a petition for writ of certiorari seeking review of a judgment of a state court of last resort to be filed within ninety days after the entry of the judgment).

         Here, the Petition is facially untimely. Petitioner alleges he was convicted on December 1');">19, 201');">14 and sentenced on January 21');">1, 201');">15. [Dkt. No.1');">1, p. 2]. Petitioner then filed a direct appeal in the California state courts and the California Supreme Court denied Petitioner's petition for review on September 1');">13, 201');">17. [Id., pp. 2-3]. Therefore, his conviction became final ninety days later on December 1');">12, 201');">17, and the limitations period expired one year later on December 1');">12, 201');">18. ...


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