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Sistrunk v. Pfeiffer

United States District Court, C.D. California

September 26, 2019

Andra Sistrunk
v.
Christian Pfeiffer

          Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

          CIVIL MINUTES–GENERAL

         Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

         I. Introduction

         On August 9, 2019, Petitioner, a California state prisoner proceeding pro se, filed an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 in the United States Court of Appeals for the Ninth Circuit. (Dkt. No. 1.) On September 19, 2019, the Ninth Circuit denied the Application as unnecessary because Petitioner had not previously filed a Section 2254 petition challenging his conviction from Los Angeles County. (Dkt. No. 2.) The Ninth Circuit directed the Clerk to transfer the Application to the Central District to be processed as a Section 2254 petition with a filing date of August 9, 2019, the date on which the Application was delivered to prison authorities for forwarding to the Ninth Circuit. (Id.) The Ninth Circuit stated “We express no opinion as to the merits of the applicant’s claims or whether the procedural requirements . . . are satisfied.” (Id.)

         According to the Application, Petitioner is challenging a March 18, 2015 conviction and sentence for second degree robbery. (See Application at 1-2.) Petitioner’s sentence was enhanced based on firearm use and a prior prison term. (See id.) Petitioner was ultimately sentenced to a total term of 18 years in state prison. (Id.)

         The Application indicates that Petitioner wishes to present one claim for federal habeas relief: “The court imposed enhancement time for prison prior and for use of a firearm, including a double up base term. Such enhancements are no longer lawful.” (Application at 3.) Petitioner also states that he has neither presented this claim in state court nor filed a prior federal habeas petition relating to his 2015 conviction. (Id. at 2-3.)

         Furthermore, Petitioner identifies no provision of the Constitution that was violated and responds “No” to the question “Which provision of the Constitution was violated and how?” (Application at 3-4.) When asked to provide “any other basis for your application not previously stated, ” Petitioner identifies only a series of California Senate Bills, including S.B. 1279 and S.B. 1393. (Id. at 4.)

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition without ordering a responsive pleading where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress’s intent for the district courts to take an active role in summarily disposing of facially defective habeas petitions. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). However, a district court’s use of this summary dismissal power is not without limits. Id. at 1128. To the contrary, a habeas court must give a petitioner notice of the defect and the consequences for failing to correct it as well as an opportunity to respond to the argument for dismissal. Id. Accordingly, this Order is intended to give Petitioner notice that the Petition is subject to dismissal because it is facially untimely, wholly unexhausted, and does not present a cognizable claim for federal habeas relief. To discharge this Order and avoid dismissal, Petitioner, no later than October 18, 2019, must file a First Amended Petition that corrects each of the defects discussed below.

         II. The Application is Facially Untimely

          First, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this action, establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The “statutory purpose” of the one-year limitations period is to “encourag[e] prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). The one-year limitations period is subject to a statutory tolling provision, which suspends it for the time during which a “properly-filed” application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in certain “extraordinary circumstances” beyond a prisoner’s control, equitable tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010).

         The Section 2244(d)(1) limitations period is triggered and begins to run from the latest of:

(A) the date on which the underlying judgment became final through either the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable constitutional right was first recognized by the ...

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