Rickey Williams v. Terri Gonzalez

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jean P Rosenbluth. (See Order for details.) IT THEREFORE IS ORDERED that on or before May 18, 2012, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action with prejudice because it is untimely. Response to Order to Show Cause due by 5/18/2012. (wr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

RICKEY WILLIAMS,

12

Petitioner,

13

vs.

14

TERRI GONZALEZ, Warden, et
al.

15

Respondents.

16
17

) Case No. CV 12-3176-ABC (JPR)
)
)
) ORDER TO SHOW CAUSE
)
)
)
)
)
)

On April 11, 2012, Petitioner filed a Petition for Writ of

18 Habeas Corpus by a Person in State Custody.

The Petition

19 purports to challenge Petitioner’s October 1, 1991 guilty plea in
20 Los Angeles County Superior Court to second-degree murder, for
21 which Petitioner was sentenced to 15 years to life.

Petitioner

22 raises two claims: his guilty plea was not knowing and
23 intelligent and his counsel had a conflict of interest, both of
24 which denied him due process in violation of the U.S.
25 Constitution.

Although Petitioner’s answers to the questions on

26 the form petition concerning his exhaustion of these claims are
27 not entirely clear, this Court’s review of the California
28 Appellate Courts’ website seems to indicate that Petitioner
1

1 exhausted them in state court earlier this year through various
2 habeas petitions.

It does not appear, despite Petitioner’s

3 statements to the contrary in his Petition, that he challenged
4 his convictions or sentence on direct appeal to the California
5 Court of Appeal or in a Petition for Review to the California
6 Supreme Court.
7

Under the Antiterrorism and Effective Death Penalty Act of

8 1996 (“AEDPA”), Petitioner had one year from the date his
9 conviction became final in which to file a federal habeas
10 petition.
11

See 28 U.S.C. § 2244(d).
(1)

That statute provides:

A 1-year period of limitation shall apply to an

12

application for a writ of habeas corpus by a person in

13

custody pursuant to the judgment of a State court.

14

limitation period shall run from the latest of--

15

(A)

The

the date on which the judgment became

16

final by the conclusion of direct review or the

17

expiration of the time for seeking such review;

18

(B)

the

date

on

which

the

impediment

to

19

filing an application created by State action in

20

violation of the Constitution or laws of the United

21

States is removed, if the applicant was prevented

22

from filing by such State action;

23

(C)

the

date

on

which

the

constitutional

24

right asserted was initially recognized by the

25

Supreme

26

recognized

27

retroactively applicable to cases on collateral

28

review; or

Court,
by

if
the

the

right

Supreme

2

has
Court

been

newly

and

made

1

(D)

the date on which the factual predicate

2

of the claim or claims presented could have been

3

discovered through the exercise of due diligence.

4

(2)

The

time

during

which

a

properly

filed

5

application for State post-conviction or other collateral

6

review with respect to the pertinent judgment or claim is

7

pending

8

limitation under this subsection.

9

Under California law in effect at the time of Petitioner’s

shall

not

be

counted

toward

any

period

of

10 conviction, an appeal had to be filed within 60 days of
11 judgment.

See Cal. R. Ct. 31 (1991).

When the judgment of

12 conviction was entered pursuant to a guilty plea, the defendant
13 was required to file a notice of intended appeal within the
14 60-day period.

See R. 31(d), drafter’s notes (1991) (noting that

15 from March 17, 1989, to January 1, 1992, no certificate of
16 probable cause was required for appeal following guilty plea).
17

Here, a review of Westlaw and the California Appellate

18 Courts’ website shows that Petitioner did not appeal his
19 conviction or sentence.

Consequently, “the date on which the

20 judgment became final by conclusion of direct review or the
21 expiration of the time for seeking such review” was sometime in
22 late 1991, when Petitioner’s time to file a notice of intended
23 appeal expired.1

Although Petitioner’s one-year limitation

24 period would normally have begun to run upon the finality of his
25 judgment of conviction, AEDPA extended the limitation period for
26 those whose convictions became final before its enactment to one
27
1

Petitioner pleaded guilty on October 1, 1991. It is not clear

28 when judgment was entered.

3

1 year after that date – April 24, 1997.

United States v. Gamboa,

2 608 F.3d 492, 493 n.1 (9th Cir.), cert. denied, 131 S. Ct. 809
3 (2010).

Petitioner did not file his federal Petition until 15

4 years later.
5

From the face of the Petition, it does not appear that

6 Petitioner has any basis for contending that he is entitled to a
7 later trigger date under § 2244(d)(1)(B).

Petitioner does not

8 contend that he was impeded from filing his federal petition by
9 unconstitutional state action.

Nor does it appear that

10 Petitioner has any basis for a later trigger date under
11 § 2244(d)(1)(C).

Petitioner does not contend that any of his

12 claims are based on a federal constitutional right that was
13 initially recognized by the U.S. Supreme Court subsequent to the
14 date his conviction became final and that has been made
15 retroactively applicable to cases on collateral review.

Finally,

16 Petitioner does not appear to be entitled to a later trigger date
17 under § 2244(d)(1)(D).

Petitioner should have been aware of the

18 underlying factual and legal bases of his claims long ago.

As

19 for his first claim, Petitioner contends that he did not know
20 that he could wind up serving more than 15 years in prison (Pet.
21 Attach. at 5), but that must have become apparent to him no later
22 than 2006, 15 years after his conviction.

And as for his second

23 claim, Petitioner attaches to the Petition a portion of trial
24 transcript showing that the purported conflict with his counsel
25 arose before he pleaded guilty.
26

(Pet., Ex. D.)

Thus, Petitioner’s last day to file his federal habeas

27 petition was April 24, 1997, unless a basis for tolling the
28 statute exists.

See Patterson v. Stewart, 251 F.3d 1243, 1246
4

1 (9th Cir. 2001).
2

No basis for statutory tolling under § 2244(d)(2) appears to

3 exist, as Petitioner’s state habeas petitions were filed earlier
4 this year.

See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

5 Cir. 2003) (holding that § 2244(d) “does not permit the
6 reinitiation of the limitations period that has ended
7 before the state petition was filed,” even if the state petition
8 was timely filed).

Under certain circumstances, a habeas

9 petitioner may be entitled to equitable tolling, see Holland v.
10 Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130
11 (2010), but only if he shows that (1) he has been pursuing his
12 rights diligently and (2) “some extraordinary circumstance stood
13 in his way,” see Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.
14 Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005).

Petitioner describes

15 various mental disturbances and illnesses he suffered at the time
16 of his crime and during his trial and guilty plea.

In certain

17 circumstances, mental illness can warrant equitable tolling of
18 the statute of limitations.
19 1097-98 (9th Cir. 2010).

See Bills v. Clark, 628 F.3d 1092,

But Petitioner does not allege in the

20 Petition that his mental condition, or any other circumstance,
21 has prevented him from filing a federal habeas petition in the
22 past 15 years.

It would be difficult for him to do so, given

23 that a review of the Court’s Case Management/Electronic Case
24 Filing system shows that Petitioner filed a habeas petition in
25 March 2008 challenging a parole decision (Case No. 2:08-cv-0188026 ABC-JCR)2 and a civil rights action in 1995, which he prosecuted
27
2

This case was subsequently transferred to the Eastern District

28 of California.

5

1 until early 1998, through the summary judgment stage (Case No.
2 2:95-cv-03204-ABC-BQR).
3

A district court has the authority to raise the statute of

4 limitations issue sua sponte when untimeliness is obvious on the
5 face of a petition; it may summarily dismiss the petition on that
6 ground pursuant to Rule 4 of the Rules Governing § 2254 Cases in
7 the U.S. District Courts, as long as the court gives petitioner
8 adequate notice and an opportunity to respond.

Herbst v. Cook,

9 260 F.3d 1039, 1042-43 (9th Cir. 2001).
10

IT THEREFORE IS ORDERED that on or before May 18, 2012,

11 Petitioner show cause in writing, if he has any, why the Court
12 should not dismiss this action with prejudice because it is
13 untimely.

If Petitioner intends to rely on the equitable tolling

14 doctrine, he will need to include with his response to the Order
15 to Show Cause a declaration under penalty of perjury stating
16 facts showing that (1) he has been pursuing his rights diligently
17 and (2) “some extraordinary circumstance stood in his way.”
18
19
20 DATED: April 20, 2012
21

JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

22
23
24
25
26
27
28
6