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Neal v. Sherman

United States District Court, C.D. California

December 5, 2019

Julius Neal
v.
Sherman

          Present: The Honorable Shashi H. Kewalramani, United States Magistrate Judge

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why This Action Should Not be Dismissed

         I. SUMMARY

         Petitioner Julius Neal (“Petitioner”), proceeding pro se, signed and subsequently filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2254. Electronic Case Filing Number (“ECF No.”) 1, Pet. The Petition was filed in this Court on November 22, 2019.

         As best can be understood, the Petition raises two sentencing error claims. ECF No. 1, Pet. at 5, 7. Based on this Court's review of the Petition, it appears to have several problems.

         First, although Petitioner frames his claims as federal constitutional claims, at heart he is complaining about the sentences he received pursuant to California state law and apparently, his entitlement to parole. ECF No. 1, Pet. at 5, 7. Such claims are not cognizable under federal habeas law. Second, it does not appear that the current habeas petition was filed in a timely manner. As explained in more detail below, the Petition appears untimely because it was filed well after the one-year deadline under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lastly, Petitioner has neither claimed-nor is there any evidence to support-that he appealed to the highest state court regarding his claims to indicate exhaustion of state court proceedings.

         However, before this Court makes a final decision whether the matter can go forward, this Court will give Petitioner an opportunity to provide any information he may have regarding the timeliness of this Petition, his exhaustion efforts, and the merits of his claim. Therefore, this Court issues this Order to Show Cause (“OSC”) why this action should not be dismissed as untimely. Petitioner's response is required no later than January 4, 2020.

         II. BACKGROUND

         A. State Court Proceedings

         Petitioner alleges that he was convicted of several counts of attempted murder on May 7, 2008. ECF No. 1, Pet. at 1. The California Courts Case Information docket indicates that Petitioner filed a direct appeal in his case, which was denied by the California Court of Appeal on April 23, 2009. People v. Neal, California Court of Appeal No. B208022, http://appellatecases.courtinfo.ca.gov (last accessed on December 3, 2019)[1] His Petition for Review to the California Supreme Court, filed on May 27, 2009, was denied on July 8, 2009. People v. Neal, California Supreme Court No. S173139. The California Courts Case Information docket also indicates that Petitioner filed a state habeas corpus petition with the California Supreme Court on November 22, 2019, the nature of the claims being unclear at this juncture. In re Neal (Julius) on Habeas Corpus, California Supreme Court No. S259319. That case is currently pending. The Court finds no other entry on the state docket indicating that Petitioner filed any other collateral challenges to his judgment of conviction.

         B. Federal Court Proceedings

         On November 4, 2019, Petitioner constructively filed the pending federal Petition and asserted the previously described grounds for habeas relief. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (noting that the “mailbox rule” allows a court to deem a pleading that is handed by a pro se litigant to prison authorities for mailing constructively “filed” on the date it is signed).

         III. DISCUSSION

         As discussed in more detail below, the Petition appears deficient because (1) it states claims that, on their face, are not cognizable under federal habeas law; (2) it appears untimely under the one-year statute of limitations; and (3) the claims in the Petition appear unexhausted. If Petitioner wishes to pursue these claims in federal court, ...


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