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Oliver v. People

United States District Court, C.D. California

October 22, 2019

DERIK COLIN OLIVER, Petitioner,
v.
THE PEOPLE, Respondent.

          ORDER DISMISSING PETITION AS UNTIMELY

          R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE

         Derik Colin Oliver (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Dkt. 1.)[1] The Court ordered Petitioner to show cause, on or before September 13, 2019, why the Petition should not be dismissed as untimely. Because Petitioner failed to respond, and because the record shows that the Petition is untimely, the Petition is hereby dismissed.

         I. BACKGROUND

         The following facts are taken from the Petition, from the Court's own records, or from public records; where necessary, the Court takes judicial notice of the latter. See Fed.R.Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it … can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”).[2]

         In 2016, a Riverside County jury convicted Petitioner of nine sex offenses against his two minor daughters, R. and C. (Dkt. 1 at 13-23 [opinion]); see also People v. Oliver, No. E066861, 2018 Cal.App. Unpub. LEXIS 239 (Jan. 10, 2018). Petitioner pursued a direct appeal challenging his convictions on count 8 (committing a forcible lewd act on C. when she was under age 14) and count 9 (attempting to use C. for a sexual act for commercial purposes when C. was under age 18). (Dkt. 1 at 14-15.)

         On January 10, 2018, the California Court of Appeal affirmed his convictions. (Id. at 13.) The court reasoned that C.'s testimony that Petitioner asked her to take “nude” pictures of herself to sell online was substantial evidence supporting his conviction on count 9. (Id. at 16-19.) The court also determined that the trial court did not err by instructing the jury to continue deliberating on count 8 after the jury returned inconsistent verdicts (i.e., finding Petitioner “guilty” of a forcible lewd act and “not guilty” of the lesser-included crime of a nonforcible lewd act). (Id. at 19-23.)

         Petitioner did not file a petition for review in the California Supreme Court. On March 17, 2019, Petitioner constructively filed a habeas petition in California Supreme Court case no. S254785. (Dkt. 1 at 7-12 [signature date].)[3] That petition was denied on June 19, 2019. Petitioner does not describe, and the online records of the California Supreme Court and California Courts of Appeal do not reveal, any other state court filings by Petitioner.[4]

         Petitioner states that any delay in filing his federal Petition was “caused by miscommunication and misrepresentation” by his appellate attorney, “which led to delay for appeal to California Supreme Court.” (Id. at 6.)

         II. DISCUSSION

         A. Legal Standard.

         District courts may raise untimeliness sua sponte when untimeliness is obvious on the face of the petition, and may summarily dismiss a habeas petition as untimely as long as the Court first provides the petitioner with notice and an opportunity to respond. Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012); Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

         This action is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which contains the following statute of limitations:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for ...

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