United States District Court, C.D. California
Present: The Honorable Autumn D. Spaeth, United States
Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings:
(IN CHAMBERS) ORDER TO SHOW CAUSE
I.
INTRODUCTION
Pending
before the Court is a Petition for Writ of Habeas Corpus by a
Person in State Custody (“Petition”) filed by
Salvador Duenas (“Petitioner”), through counsel,
on October 28, 2019. [Dkt. No. 1]. Petitioner requests that
this Court “order the California Court of Appeal to
vacate its October 31, 2018 order denying his
motion/application for leave from default and to hear the
appeal on the merits.” [Id., p. 15]. The
Court's review of the Petition, the Court's own
records, and public records reveals that the Petition fails
to state a cognizable claim for federal habeas relief and
appears barred by procedural default.[1"
name="FN1" id="FN1">1]
For the
reasons discussed below, Petitioner is ORDERED TO
SHOW CAUSE in writing by December 6,
2019 why the instant Petition should not be
dismissed with prejudice because it (1) fails to state a
cognizable claim for federal habeas relief and (2) is barred
by procedural default.
II.
SCREENING REQUIREMENT
Under
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.”
III.
THE PETITION FAILS TO STATE A COGNIZABLE CLAIM FOR
FEDERAL HABEAS RELIEF
Pursuant
to Rule 4 of the Rules Governing § 2254 Cases, if it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief, “the
court must summarily dismiss the petition without ordering a
responsive pleading.” Mayle v. Felix, 545 U.S.
644, 656 (2005). 28 U.S.C. § 2254 provides that a
federal court shall entertain an application for writ of
habeas corpus “only on the ground that [the petitioner]
is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2254(a).
The
sole ground stated in the Petition seeks an order from the
District Court vacating the California Court of Appeal's
order denying his motion for relief from his untimely appeal.
[Dkt. No. 1, p. 15]. Petitioner does not assert that he is in
custody in violation of the Constitution, laws, or treaties
of the United States. As such, the Petition fails to state a
cognizable claim for federal habeas relief.
IV.THE
PETITION APPEARS BARRED BY PROCEDURAL DEFAULT
Even
were Petitioner to state a cognizable habeas claim, the
Petition appears barred by procedural default. Federal courts
cannot grant habeas relief if the following is true:
“(1) ‘a state court has declined to address a
prisoner's federal claims because the prisoner had failed
to meet a state procedural requirement,' and (2)
‘the state judgment rests on independent and adequate
state procedural grounds.'” Walker v.
Martin, 562 U.S. 307, 316 (2011) (alteration omitted)
(quoting Coleman v. Thompson, 1 U.S. 722');">501 U.S. 722, 729-30
(1991)); see also Ayala v. Chappell, 1081');">829 F.3d 1081,
1095 (9th Cir. 2016) (“The procedural bar doctrine
prohibits a federal court from granting relief on the merits
of a state prisoner's federal claim when the state court
denied the claim based on an independent and adequate state
procedural rule.”). California's timeliness rules
have been considered independent state grounds adequate to
bar federal habeas relief. Walker, 562 U.S. at 321
(holding that California's time limitation on petitions
for habeas corpus relief was an independent and adequate
state procedural ground).
Nonetheless,
a federal habeas court may consider a procedurally barred
claim if the petitioner “can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claim[] will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750.
“[T]he existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded
counsel's effort to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To show that there was actual prejudice,
Petitioner must demonstrate “not merely that the errors
. . . created a possibility of prejudice, but that
they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” U.S. v. Frady, 456
U.S. 152, 170 (1982). Furthermore, a federal court may
consider a defaulted claim on the merits if the petitioner
“can demonstrate a fundamental miscarriage of justice
by establishing that under the probative evidence he has a
colorable claim of factual innocence.” Cooper v.
Neven, 1 F.3d 322');">641 F.3d 322, 327 (9th Cir. 2011) (internal
quotation marks and brackets omitted); see also Bousley
v. United States, 14');">523 U.S. 614, 623-24 (1998) (holding
defendant must establish “factual innocence, not mere
legal insufficiency” to overcome procedural default).
Petitioner
admits he filed his direct appeal to the California Court of
Appeals late. [Dkt. No. 1, pp. 5, 6, 24]. It is on this basis
that the Court of Appeals rejected his appeal. [Id.,
pp. 25, 32]. It is also on this basis that the California
Supreme Court rejected his appeal. [Id., p. 6]. As
such, the California State Courts refused to hear
Petitioner's appeal because he failed ...