United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED FOR FAILURE TO COMPLY WITH STATUTE OF LIMITATIONS
OBJECTIONS DUE IN FOURTEEN DAYS ECF NO. 1 ORDER DENYING
MOTION TO STAY ECF NO. 7
Curley John Broussard, Jr., a state prisoner without counsel,
seeks a writ of habeas corpus under 28 U.S.C. § 2254.
ECF No. 1. The matter is before the court for review under
Rule 4 of the Rules Governing Section 2254 Cases. Under Rule
4, the judge assigned to the habeas proceeding must examine
the habeas petition and order a response to the petition
unless it “plainly appears” that the petitioner
is not entitled to relief. See Valdez v. Montgomery,
918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson,
147 F.3d 1124, 1127 (9th Cir. 1998). Petitioner also filed a
motion to stay, which is denied. ECF No. 7.
court may raise the statute of limitations sua
sponte when reviewing a habeas petition. See Day v.
McDonough, 547 U.S. 198, 209 (2006); Herbst v.
Cook, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001) (Federal
district courts may consider the timeliness of a state
prisoner's habeas petition to serve the interests of
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), petitioners seeking habeas relief
under § 2254 must comply with the statute of limitations
set by 28 U.S.C. § 2244(d). The one-year period begins
on the latest of four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id.; see also Hasan v. Galaza, 254 F.3d
1150, 1153 (9th Cir. 2001).
statute of limitations period can be tolled in various ways.
For example, a petitioner can obtain equitable tolling if he
shows: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Williams v. Filson, 908 F.3d 546, 558 (9th Cir.
2018) (quoting Holland v. Florida, 560 U.S. 631, 649
petitioner asserts three grounds for relief: (1) judicial
misconduct during his 1983 trial, (2) miscarriage of justice
during his 1983 trial, and (3) a violation of his rights
caused by a “code of silence” enforced by the Los
Angeles County Superior Court in 1984. See ECF No. 1
at 4-15. Petitioner sought state-level habeas review of his
1983 conviction multiple times. The most recent of
petitioner's state habeas petitions was denied on October
1, 2008 by the California Supreme Court. See Broussard on
H.C., No. S165761 (Cal. Oct. 1, 2008).
comply with § 2244(d), petitioner must have either filed
his petition within one year of the California Supreme
Court's denial of review or show he is entitled to
tolling under one of the narrow exceptions of §
2244(d)(1)(B-D). Here, petitioner filed his federal petition
on February 6, 2019-over 10 years after the California
Supreme Court's “judgment became final by the
conclusion of direct review.” 28 U.S.C. §
2244(d)(1)(A). Because the record indicates that the
petition may “fall outside the one-year time period,
the petitioner has the burden of demonstrating that he is
entitled to tolling.” Smith v. Duncan, 297
F.3d 809, 815 (9th Cir. 2002), abrogated on other grounds by
Pace v. DiGuglielmo, 544 U.S. 408 (2005). Therefore,
petitioner must explain to this court how his petition
complies with § 2244(d).
filed a motion to stay on June 6, 2019. ECF No. 7. Petitioner
expressed his intention to file additional civil suits
disputing the validity of his 1983 criminal conviction under
alternative theories of law, including breach of contract and
fraud. Id. at 4-5. This court may stay federal
habeas proceedings while a petitioner seeks to exhaust
state-level appellate or habeas remedies, as required by
AEDPA. See Rhines v. Weber, 544 U.S. 269 (2005);
Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir.
2003). However, AEDPA does not require a federal habeas
petitioner to seek other forms of civil relief, such as those
contemplated by petitioner, prior to filing a federal habeas
petition. See 28 U.S.C. § 2254(b)(1). Because
AEDPA does not require the types of suits petitioner intends
to file as a prerequisite to federal habeas relief, no stay
is needed and the court denies his motion.
same motion, petitioner seeks an order requiring the prison
to provide him with regular access to the prison law library.
ECF No. 7 at 6. Under § 2254, a writ of habeas corpus is
available to prisoners challenging the fact or duration of
their confinement. See Heck v. Humphrey, 512 U.S.
477, 481 (1994). In contrast, if a favorable judgment for the
petitioner would not “necessarily lead to his immediate
or earlier release from confinement, ” the court lacks
jurisdiction under this provision. See Nettles v.