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Broussard v. United States

United States District Court, E.D. California

January 15, 2020

CURLEY JOHN BROUSSARD, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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

         Petitioner 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.

         Statute of Limitations

         This 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 judicial efficiency.).

         Under 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).

         The 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 (2010)).

         Here, 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).[1]

         To 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).[2] 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).

         Motion to Stay

         Petitioner 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.

         In the 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. ...


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