United States District Court, C.D. California
Present: The Honorable: Karen L. Stevenson, United States
(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
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
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.)
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.)
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.)
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.
The Application is Facially Untimely
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).
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
(C) the date on which a newly recognized and retroactively
applicable constitutional right was first recognized by the