United States District Court, C.D. California
Present: The Honorable Shashi H. Kewalramani, United States
(In Chambers) Order to Show Cause Why This Action Should Not
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.
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.
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
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.
State Court Proceedings
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,
accessed on December 3, 2019) 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.
Federal Court Proceedings
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).
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, ...