United States District Court, C.D. California
Robert H. Dunlap
Present: The Honorable: Karen L. Stevenson, United States
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER GRANTING PETITIONER'S APPLICATION TO
PROCEED IN FORMA PAUPERIS; ORDERING PETITIONER TO SHOW CAUSE
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.
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).
Petition presents two grounds for habeas relief: (1)
Petitioner received an unauthorized sentence in light of
California Senate Bill SB-1437; and (2) Petitioner received an
unauthorized sentence in light of Proposition
(Petition at 5-6.) According to the Petition, Petitioner did
not present either of these claims to the California Supreme
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.
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.
DEFECT: THE PETITION IS FACIALLY UNTIMELY
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).
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 ...