White v. Madden

          ORDER TO SHOW CAUSE

          JOHN D. EARLY, UNITED STATES MAGISTRATE JUDGE

         Petitioner Russell Lee White (“Petitioner”) filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2254, alleging that California Senate Bill (“SB”) 1391^[1]should be applied retroactively to his case in the California courts and the failure to resentence him violates his due process and equal protection rights. However, the Petition appears to contain one or more unexhausted claims and is untimely on its face. The Court thus orders Petitioner to show cause why this action should not be dismissed.

         I.

         PROCEDURAL HISTORY

         In 2005, in Los Angeles County Superior Court, Petitioner pleaded no contest to robbery, rape, and lewd or lascivious act upon a child who was under fourteen years of age. Pet. at 2; Los Angeles County Superior Court at www.lacourt.org.^[2] Petitioner contends he was sentenced to thirty years to life in state prison on May 11, 2005. Pet. at 2. Petitioner did not file an appeal or a petition for review. Pet. at 2-3.

         On January 24, 2019, Petitioner collaterally challenged his conviction by filing a habeas petition in the Los Angeles County Superior Court. Pet. at 3, 13, 23-24 (CM/ECF pagination). That petition was denied on February 1, 2019. Id. at 4. 23-24. Petitioner filed a habeas petition in the California Court of Appeal on or about March 18, 2019, which was denied on April 5, 2019. Id. at 4, 26. Petitioner filed a habeas petition in the California Supreme Court on June 13, 2019, and a supplement on September 16, 2019. Id. at 4, 10-18, 30-37; Appellate Courts Case Information at https://appellatecases.courtinfo.ca.gov. That petition was denied on September 25, 2019. Id. at 5, 28. On October 4, 2019, ^[3] Petitioner constructively filed the instant Petition.

         II.

         DISCUSSION

         A. Petitioner Has Not Exhausted His State Judicial Remedies

         As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground for relief presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). The habeas statute provides that a habeas petition brought by a person in state custody “shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Under the total exhaustion rule, if even one of the claims being alleged by a habeas petitioner is unexhausted, the petition must be dismissed. See Rose, 455 U.S. at 522; see also Coleman v. Thompson, 501 U.S. 722, 731 (1991), modified by Martinez v. Ryan, 566 U.S. 1 (2012); Castille v. Peoples, 489 U.S. 346, 349 (1989).

         Exhaustion requires that the petitioner's claims be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Here, the Petition, on its face, contains one or more unexhausted claims, rendering it “mixed” and subject to dismissal. Petitioner attached his California Supreme Court habeas petition and supplement to the Petition. In the state supreme court, Petitioner alleged that he was entitled to resentencing under SB 1391. He did not, however, assert that the failure to resentence him violated his due process or equal protection rights. See Pet. at 12-15, 32-33. Arguably, Petitioner may have intended to raise an equal protection claim by contending that “defendants of nonfinal cases [are] entitled to SB 1391 hearing and in contrast defendants in final cases [are] excluded from equal protection of Senate Bill 1391 mitigating benefits solely based on a procedural directive.” Id. at 15. Even affording Petitioner the benefit of every doubt and liberally construing the state habeas petition to raise an equal protection claim, however, the instant Petition remains mixed because Petitioner did not assert a due process claim in the California Supreme Court.

         When a Section 2254 petition is determined to be mixed, the petitioner may request to exercise one of various options potentially available to him. In this case, the Court reserves any further action on the exhaustion issue at this time because another defect appears to exist. Namely, for the reasons set forth below, the Petition, on its face, plainly is untimely.

         B. The Petition is Facially Untimely

         Because the Petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the AEDPA's one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). See Soto v. Ryan, 760 F.3d 947, ...