Kevin Jerome Hill v. Amy Miller

Filing 3

ORDER TO SHOW CAUSE RE UNTIMELINESS AND JURISDICTION by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 3/27/2014. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KEVIN JEROME HILL,
Petitioner,

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vs.

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AMY MILLER, Warden,
Respondent.

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CASE NO. CV 14-1189 JVS (RZ)
ORDER TO SHOW CAUSE RE
UNTIMELINESS AND JURISDICTION

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The Court issues this Order To Show Cause directed to Petitioner because it

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appears that (1) both claims in this habeas action are untimely and (2) the first claim is

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barred as an unauthorized successive challenge to his 2006 sentence.

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I. POSSIBLE UNTIMELINESS

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A.

Applicable Law

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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”), a portion of which established a one-year statute of limitations for bringing

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a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the

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limitations period commences on the date a petitioner’s conviction became final. See 28

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U.S.C. § 2244(d)(1), but for convictions that became final before AEDPA took effect, the

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limitation period begins with AEDPA’s effective date of April 24, 1996. Miles v. Prunty,

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187 F.3d 1104, 1105 (9th Cir. 1999).

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The time spent in state court pursuing collateral relief in a timely manner is

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excluded, see 28 U.S.C. § 2244(d)(2), and the statute also is subject to equitable tolling.

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Holland v. Florida, 560 U.S. 631, 648, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010).

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This Court may raise sua sponte the question of the statute of limitations bar,

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so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260

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F.3d 1039 (9th Cir. 2001).

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B.

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Procedural History

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Petitioner indicates that he signed the current petition on February 3, 2014.

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From the face of the petition and from judicially-noticeable materials, the Court discerns

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as follows:

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(a)

In 1991 – in the case to which the Court hereafter refers as Hill I to distinguish it

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from later criminal cases – Petitioner entered a negotiated plea of guilty to charges

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of robbery, attempted robbery, attempted murder and a firearm-use enhancement.

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He was sentenced to 20 years in prison. See Pet. ¶ 2. He asserts here that his plea

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bargain included the following special term. Although he had committed multiple

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crimes, the crimes would count as only one prior conviction, for sentence enhancing

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purposes, if Petitioner were to offend again.

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(b)

He did. In 2006, Petitioner was convicted in Los Angeles County Superior Court

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of robbery with use of a firearm and being a felon in possession of a firearm. Based

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in part on his prior convictions, he was sentenced to 45 years to life in prison. See

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Pet. in Hill v. Smalls, No. CV 10-3957 (hereafter Hill III, with a short-lived 2009

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case serving as Hill II), ¶ 2; Clerk’s Transcript in Hill III at 127-28. One of

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Petitioner’s two current claims is that the 2006 “Third Strike” sentence violated his

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1991 plea agreement, in that the judge in 2006 construed the 1991 case as supplying

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multiple sentence-enhancing “strikes” rather than just one. But as noted below,

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Petitioner did not assert such a claim in the trial court or elsewhere until 2013.

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(c)

The California Court of Appeal affirmed the 2006 conviction, and on July 9, 2008,

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the California Supreme Court denied further direct review. See Hill III Pet. ¶¶ 3-4.

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Petitioner does not appear to have sought certiorari in the United States Supreme

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Court. His 2006 conviction therefore became final after October 8, 2008, when the

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high court’s 90-day deadline for seeking certiorari expired. See SUP. CT. R. 13.1.

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His one-year limitations period for filing in this Court began to run on that date.

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(d)

One week later on October 15, 2008, Petitioner tolled the statute of limitations by

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filing the first of three unsuccessful state habeas petitions. See Hill III Pet. ¶ 6(a)(5).

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The California Supreme Court denied his third petition on June 10, 2009. Id.

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¶ 6(c)(5). Petitioner’s limitations period began to run again thereafter with 358 days

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remaining. Unless he tolled the statute again, his limitations period expired 51

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weeks later, after Friday, June 4, 2010.

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(e)

On July 2, 2009, Petitioner filed a habeas action in this Court, which dismissed the

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case as unexhausted on May 4, 2010. See docket in case no. CV 09-4779 JVS (RZ)

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(Hill II).

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(f)

Twenty-two days later on May 26, 2010, Petitioner filed another habeas action in

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this Court, Hill III. (Neither of the prior federal petitions, Hill II and Hill III, tolled

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Petitioner’s AEDPA limitations period. Duncan v. Walker, 533 U.S. 167, 181-82,

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121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001).) The Court discussed his dozens of

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claims at length – although his current excessively-enhanced-sentence claim was not

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among them – before dismissing the action with prejudice on January 17, 2012.

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(g)

On June 7, 2012, Petitioner filed a habeas petition in the California Court of Appeal,

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which denied relief on July 11, 2012. See docket in In re Hill, Cal. Ct. App. (2d

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Dist.) case no. B241699. The California Supreme Court denied a petition for review

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of the foregoing ruling on September 12, 2012 in case number S204267. (Petitioner

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does not mention the 2012 state petition in his current pleading.)
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(h)

Six months passed. On March 29, 2013, Petitioner began another series of three or

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four additional and unsuccessful state habeas petitions, in the trial court, the

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California Court of Appeal and the California Supreme Court, albeit not in that

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order. See Pet. ¶ 6.

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C.

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Discussion
Both of Petitioner’s two claims appear to be untimely, to different degrees.

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Claim 1.

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Claim 1 is that Petitioner’s 2006 sentence violated his 1991 plea bargain.

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See Pet. at 6-11. But Petitioner was immediately aware, in 2006, of the factual basis for

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that claim. Claim 1 thus appears to have become stale in June of 2010. Petitioner’s

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commencement of state habeas proceedings thereafter cannot rejuvenate his stale claims.

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See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000).

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Claim 2.

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Claim 2 is that Petitioner’s counsel in 1991 was prejudicially ineffective. In

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essence, Petitioner argues that the attorney advised Petitioner to plead guilty instead of

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advancing to trial. Petitioner explains that he now realizes that, had he understood the law

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properly, he would have realized that he could not have been convicted of some or all of

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the crimes to which he pleaded guilty. This claim is even more stale than Claim 1.

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Petitioner was aware in 1991 of the factual bases for this claim. His tardiness is not

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excused by his possible unawareness, for two decades, of the legal underpinnings of the

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claim. Petitioner’s limitations period for this pre-AEDPA claim began running in April

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1996 and expired in April 1997.

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II. CLAIM ONE APPEARS TO BE

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AN UNAUTHORIZED SUCCESSIVE CLAIM

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As noted above, in Claim 1, Petitioner argues that his 2006 sentence was

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excessively enhanced in violation of his 1991 plea bargain. Because the Court denied

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Petitioner’s prior habeas challenge to his 2006 conviction, and because he lacks

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authorization from the Court of Appeals to file another, the Court appears to lack

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jurisdiction to entertain Claim 1, whether or not that claim is timely.

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A.

Applicable Law
Section 2244 of Title 28, part of the Antiterrorism and Effective Death Penalty

Act, requires that the district court dismiss most successive habeas corpus petitions:

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(b)(1)

A claim presented in a second or successive habeas corpus

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application under section 2254 that was presented in a prior application shall

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be dismissed.

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(2) A claim presented in a second or successive habeas corpus

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application under section 2254 that was not presented in a prior application

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shall be dismissed unless –

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(A) the applicant shows that the claim relies on a new rule

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of constitutional law, made retroactive to cases on collateral

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review by the Supreme Court, that was previously unavailable;

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or

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(B) (i) the factual predicate for the claim could not have

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been discovered previously through the exercise of due

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diligence; and

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(ii) the facts underlying the claim, if proven and viewed

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in light of the evidence as a whole, would be sufficient to

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establish by clear and convincing evidence that, but for
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constitutional error, no reasonable factfinder would have found

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the applicant guilty of the underlying offense.

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(3)(A) Before a second or successive application permitted by this

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section is filed in the district court, the applicant shall move in the appropriate

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court of appeals for an order authorizing the district court to consider the

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application.
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In Felker v. Turpin, 518 U.S. 651, 656-57, 116 S. Ct. 2333, 135 L. Ed. 2d 827

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(1996), the Supreme Court noted that this statute transferred the screening function for

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successive petitions from the district court to the court of appeals. This provision has been

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held to be jurisdictional; the district court cannot entertain a successive petition without

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prior approval from the Court of Appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

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Cir. 2001); see also Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Nunez v. United

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States, 96 F.3d 990, 991 (7th Cir. 1996). The district court therefore either must dismiss

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a successive petition for lack of jurisdiction, or it may transfer the action, in the interest of

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justice, to the court where the action properly could have been brought. 28 U.S.C. § 1631;

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Pratt, 129 F.3d at 57.

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B.

Discussion

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Petitioner seeks to circumvent the bar on successive petitions by labeling his

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challenge as one targeting his 1991 conviction, not his 2006 sentence. See Pet. ¶ 2(d)

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(specifying 1991 conviction as the one “on which the petition is based”). But Petitioner

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does not challenge the fact or duration of his confinement for the 1991 conviction. What

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aggrieves him is the excessive enhancement of his sentence for the 2006 crimes. As he

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states in his brief, “Because the 2006 sentence violated the 1991 plea agreement,” he is

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entitled to relief. Pet. at 10 (emphasis added). Perhaps this is why the Ninth Circuit used

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the following cautious wording in ruling, on January 24, 2014, on Petitioner’s request (in

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the appellate court’s case number 13-72502) for leave to file a second petition here:

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The application for authorization to file a second or successive 28

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U.S.C. § 2254 habeas corpus petition in the district court is denied as

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unnecessary to the extent petitioner is challenging his 1991 convictions

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because the record suggests he has not filed a prior habeas petition in the

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district court regarding those convictions.
The remainder of the application . . . is denied. Petitioner has not made

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a prima facie showing under 28 U.S.C. § 2244(b)(2) . . . .

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...

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If petitioner files a habeas petition in the district court challenging his

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1991 convictions, petitioner shall provide the district court with a copy of this

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order.

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Ord. of Jan. 24, 2014 (emphasis added). The italicized portion of the order strongly

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suggests that Petitioner’s artistry in labeling did not deceive the Court of Appeals. The

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“extent” to which Petitioner truly “is challenging his 1991 convictions,” rather than his

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2006 sentence, is nil for Claim 1. (He clearly does challenge the older convictions in Claim

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2.)

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Petitioner primarily relies on Davis v. Woodford, 446 F.3d 957 (9th Cir. 2006),

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but that case does not help him. Stafford Davis had pleaded guilty to eight robberies in

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1986. As in Petitioner’s 1991 plea bargain, one part of Davis’s plea deal specified that the

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1986 conviction(s) would only count as one prior offense for purposes of enhancing the

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sentence for any crimes Davis might commit thereafter. In 2000, Davis was convicted of

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new felonies and, like Petitioner, was sentenced as a “Third Striker” by a trial judge who

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counted the 1986 conviction as multiple “strikes” rather than just one. This Court denied

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habeas relief, but, on this issue, the Ninth Circuit reversed. The appellate court remanded
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for resentencing on the 2000 conviction so that Petitioner could obtain the benefit of his

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1986 plea bargain. But the Davis court did not overturn the 1986 conviction as invalid –

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nor, apparently, did Stafford Davis even purport to target the 1986 convictions. Instead,

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Davis appears to have straightforwardly challenged his 2000 sentence. Petitioner, in

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contrast, pointedly labels his current action as a challenge to his 1991 conviction – perhaps

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because he knew he has already litigated a habeas challenge to his 2006 conviction and was

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unlikely to win authorization for a second such challenge. The bottom line is that Claim

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1 appears to present an unauthorized successive habeas challenge to the 2006 judgment.

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III. CONCLUSION

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For the foregoing reasons, the Court ORDERS Petitioner TO SHOW CAUSE

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in writing why this action should not be dismissed as being barred, in whole or in part,

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(1) by the statute of limitations and/or (2), as to Claim 1, as an unauthorized successive

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challenge to the already-challenged 2006 Judgment. Petitioner shall file his response not

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later than 30 days from the filing date of this Order.

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If Petitioner does not file a response within the time allowed, the action may
be dismissed for the reasons discussed above and/or for failure to prosecute.
DATED: February 25, 2014

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RALPH ZAREFSKY
UNITED STATES DISTRICT JUDGE

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