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Dunlap v. Sherman

United States District Court, C.D. California

January 3, 2020

Robert H. Dunlap
v.
Stu Sherman

          Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) ORDER GRANTING PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS; ORDERING PETITIONER TO SHOW CAUSE RE: DISMISSAL

         On December 27, 2019, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis. (Dkt. No. 1.) IT IS HEREBY ORDERED that Petitioner's application to proceed in forma pauperis is GRANTED. However, for the reasons stated below, Petitioner is ordered to show cause no later than January 24, 2020 why the Petition should not be dismissed on the grounds that it is facially untimely, appears wholly unexhausted, and fails to state a cognizable claim for federal habeas relief.

         INTRODUCTION

         According to the Petition and attached documents, Petitioner is challenging the 60-year prison sentence imposed in connection with his April 1999 first-degree murder conviction (Cal. Penal Code § 187(a)) and the jury's determination that Petitioner used a deadly and dangerous weapon, a knife (Cal. Penal Code § 12022(b)(1)). (Petition at 2, 5; see also Id. at CM/ECF Page ID 52-46); see also Petition for Review, No. S089291, 2000 WL 34230682 (Jun. 20, 2000), at *3. More than 19 years after the California Supreme Court denied his Petition for Review, see People v. Dunlap, No. S089291, 2000 Cal. LEXIS 6023 (Jul. 26, 2000), Petitioner filed the instant Petition. The Petition states that Petitioner has filed no prior state habeas petitions (Petition at 3-4), and the Court's review of the state courts' website indicates that, on September 30, 2019, Petitioner filed in the California Supreme Court his first and only state habeas petition. See also Dunlap (Robert H.) on H.C., Docket (Register of Actions), No. S258318 (denied Jan. 2, 2020), available at https://appellatecases.courtinfo.ca.gov (last visited Jan. 3, 2020).[1]

         The Petition presents two grounds for habeas relief: (1) Petitioner received an unauthorized sentence in light of California Senate Bill SB-1437;[2] and (2) Petitioner received an unauthorized sentence in light of Proposition 36.[3] (Petition at 5-6.) According to the Petition, Petitioner did not present either of these claims to the California Supreme Court. (Id.)

         APPLICABLE LAW

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition without ordering a responsive pleading where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress's intent for the district courts to take an active role in summarily disposing of facially defective habeas petitions. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). However, a district court's use of this summary dismissal power is not without limits. Id. at 1128. To the contrary, a habeas court must give a petitioner notice of the defect and the consequences for failing to correct it as well as an opportunity to respond to the argument for dismissal. Id.

         For the reasons stated below, the Court finds that the Petition is subject to dismissal under Habeas Rule 4 on the grounds that it is facially untimely, appears wholly unexhausted, and fails to state a cognizable claim for federal habeas relief. Accordingly, this Order constitutes notice to Petitioner of the defects of the Petition and the consequences for his failure to correct them. Petitioner is ordered to file a First Amended Petition remedying the defects identified in this Order and either a response establishing that the exhaustion process is complete or a request for a Rhines stay to continue this action.

         FIRST DEFECT: THE PETITION IS FACIALLY UNTIMELY

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this action, establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The “statutory purpose” of the one-year limitations period is to “encourag[e] prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). The one-year limitations period is subject to a statutory tolling provision, which suspends it for the time during which a “properly-filed” application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in certain “extraordinary circumstances” beyond a prisoner's control, equitable tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010).

         The Section 2244(d)(1) limitations period is triggered and begins to run from the latest of:

(A) the date on which the underlying judgment became final through either the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created by unconstitutional state ...

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