United States District Court, C.D. California
Present The Honorable Steve Kim, U.S. Magistrate Judge
CIVIL MINUTES - GENERAL
CHAMBERS) ORDER TO SHOW CAUSE
August 2019, Petitioner filed what he calls a “petition
for writ of prohibition and order to show cause for
preliminary injunction” that challenges his 1997 state
convictions for robbery, burglary, sexual battery, and rape.
(ECF 1, 2). But “[a] writ of prohibition is not a means
for invalidating the judgment of a non-subordinate court such
as a state court, but rather is a means of confining or
compelling the exercise of jurisdiction of an ‘inferior
court' such as a lower federal court.”
Olivier-Ward v. Blackwell, 127 F.3d 1106 (9th Cir.
1997) (citing Ex Parte Republic of Peru, 318 U.S.
578, 581-83 (1943)). The Court thus lacks jurisdiction to
entertain this “petition for writ of prohibition”
against a state court judgment.
correct way to challenge a state court conviction is through
a habeas petition under 28 U.S.C. § 2254. But Petitioner
has previously filed three such unsuccessful petitions
already in 2002, 2004, and 2017. (See C.D. Cal. Case
Nos. 2:02-cv-04747, 2:04-cv-04332, 2:17-cv-08290). And when a
petition under § 2254 has been denied on the merits, any
later petition attacking the same conviction is considered
impermissibly successive. See McNabb v. Yates, 576
F.3d 1028, 1029 (9th Cir. 2009). So a successive petition
cannot be filed without advance authorization from the
appropriate U.S. Court of Appeals. See 28 U.S.C.
§ 2244(b)(3)(A). Yet Petitioner presents no evidence
that he has obtained this authorization from the Ninth
Circuit. Without that authorization, the Court has no
jurisdiction to entertain Petitioner's challenge to his
state court conviction.
Petitioner had obtained that authorization, the Petition is
facially untimely by 18 years. On direct appeal, the California
Supreme Court denied review in August 1999 (see Cal.
S.Ct. Case No. S080088), and because Petitioner did not file
a certiorari petition in the U.S. Supreme Court, his
conviction became final 90 days later in November 1999. From
that date, Petitioner had one year to file a timely federal
petition. See 28 U.S.C. § 2244(d)(1)(A). No
statutory tolling appears available because Petitioner did
not file his first state petition (see Cal.Ct.App.
Case No. B283125) until after the one-year limitations period
had already lapsed. See Ferguson v. Palmateer, 321
F.3d 820, 823 (9th Cir. 2003). Nor does there appear any
basis for equitable tolling or the delayed commencement of
the limitations period under § 2254(d)(1). And
Petitioner's three prior federal petitions did not toll
the statute of limitations either. See Duncan v.
Walker, 53 U.S. 167, 181-82 (2001). So even if the Court
had jurisdiction to review the Petition, it would be subject
to summary dismissal for untimeliness.
even if the Petition were somehow considered timely, it would
still be procedurally defaulted. Federal courts may not
review an alleged violation of federal law if the state
court's decision rests on an independent and adequate
state procedural ground. See Coleman v. Thompson,
501 U.S. 722, 750 (1991). Here, in the last state court
decision on Petitioner's most recent round of state
collateral review, the California Supreme Court denied the
petition with citations to In re Robbins, 18 Cal.4th
770, 780 (1998), and to In re Clark, 5 Cal.4th 750,
767-69 (1993). (See Cal. S.Ct. No. S243568). Both
Robbins and Clark are independent and
adequate state procedural rules prohibiting federal habeas
review. See Walker v. Martin, 562 U.S. 307, 315-320
(2011); Briggs v. State, 2017 WL 1806495, at *6
(N.D. Cal. May 5, 2017). Thus, the Petition would be
unreviewable-even if it were timely- because of those
procedural defaults, unless Petitioner demonstrates cause and
actual prejudice. See Coleman, 501 U.S. at 750.
Petitioner is ORDERED TO SHOW CAUSE on or before
September 27, 2019 why the Court
should not dismiss this action for lack of jurisdiction,
untimeliness, or procedural default. If Petitioner no longer
wishes to pursue this action, he may voluntarily dismiss the
action under Federal Rule of Civil Procedure 41(a) by filing
a “Notice of Voluntary Dismissal.” The Clerk is
directed to provide Petitioner with a Notice of Voluntary
Dismissal Form CV-09. If Petitioner does not file a
notice of voluntary dismissal or timely response to this
Order to Show Cause, the Court may also recommend involuntary
dismissal of the Petition for failure to prosecute and obey
court orders. See Fed. R. Civ. P 41(b); L.R. 41-1.
 The Court takes judicial notice of
Petitioner's prior direct appeals and habeas proceedings.
See Trigueros v. Adams, 658 F.3d 983, ...