Gary Taylor v. Ron Davis

Filing 10

(IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Alka Sagar. 1. Petitioner is ORDERED TO SHOW CAUSE why this Court should not dismiss this Petition for lack of subject matter jurisdiction. If Petitioner wishes to pursue this action, he must fi le a Supplemental Statement (not to exceed ten pages excluding exhibits and declarations) no later than July 17, 2014, specifically asserting his arguments for why the Court has subject matter jurisdiction over the Petition. 2. No further filing is required from Respondent until and unless the Court so orders. (See attached Order for further details.) (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV-14-3153 - SJO (AS)

Title

Gary Taylor, Petitioner v. Ron Davis, Warden, Respondent

Present: The
Honorable

Date

June 17, 2014

Alka Sagar, United States Magistrate Judge
Alma Felix

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

N/A

N/A

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE

On April 16, 2014, Gary Taylor (“Petitioner”) constructively filed a Petition for Writ of Habeas
Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“Petition”) (Docket Entry No. 1).1
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the
Court has screened the Petition in this matter.
On May 2, 2014, the Court issued an order finding that: (1) Petitioner’s conviction became final on
Jule 1, 2009; (2) the window for Petitioner to file his Petition thus ran from July 2, 2009 to July 1, 2010,
pursuant to 28 U.S.C. § 2244(d)(1); and (3) Petitioner was not entitled to any statutory or gap tolling during
the pendency of any of his habeas petitions filed in the California Courts (Docket Entry No. 3). Thus, the
Court concluded that the instant Petition, constructively filed on April 16, 2014, was untimely by over three
years. Rather than dismiss the Petition, the Court afforded Petitioner an opportunity to address the
timeliness of his Petition and explain how his Petition is timely under either statute, 28 U.S.C. § 2244(d)(1),
or that he is entitled to equitable tolling of his Petition, pursuant to Holland v. Florida, 130 S. Ct. 2549, 2560
(2010).2

1

The Petition is signed and dated April 16, 2014, but was filed with the Clerk of the Court on
April 24, 2014. A federal habeas petition is constructively filed on the date on which a prisoner presents
the pleading to prison officials for mailing. Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000),
vacated on other grounds, 536 U.S. 214 (2002). The Court shall assume for the purposes of this Report
and Recommendation that Petitioner provided his Petition to prison officials to mail on the date that it
was signed.
2

On June 11, 2014, Petitioner filed a “Motion to Submit Declarations,” which the Court will
construe as a Response to its May 2, 2014 Order (Docket Entry No. 7). The Court has reviewed the
Response as well as the entire docket history in this matter. Until the Court settles the question of
whether it has subject matter jurisdiction to consider the Petition, the Court will reserve judgment on the
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV-14-3153 - SJO (AS)

Date

Title

June 17, 2014

Gary Taylor, Petitioner v. Ron Davis, Warden, Respondent

On June 16, 2014, Respondent filed a “Response to Court’s Order of May 2, 2014” (“Response”),
wherein, inter alia, Respondent asserted that this Court is without subject matter jurisdiction to consider the
Petition because the Petition challenges the trial court’s imposition of a restitution order, and because of his
trial counsel’s purported failure to prevent imposition of the restitution order (Docket Entry No. 8).3 See
Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010).
Therefore:
1.

Petitioner is ORDERED TO SHOW CAUSE why this Court should not dismiss this
Petition for lack of subject matter jurisdiction. If Petitioner wishes to pursue this action, he
must file a Supplemental Statement (not to exceed ten pages excluding exhibits and
declarations) no later than July 17, 2014, specifically asserting his arguments for why the
Court has subject matter jurisdiction over the Petition.

2.

No further filing is required from Respondent until and unless the Court so orders.

Petitioner is expressly warned that failure to timely comply with this ORDER may result in
a recommendation that this action be dismissed with prejudice for lack of subject matter jurisdiction.
See 28 U.S.C. § 2254(a).

merits of Petitioner’s Response.
3

In accordance with the Court’s May 2, 2014 Order, Respondent also filed lodged “documents
necessary to evaluate whether the instant Petition is timely, exhausted, or successive” (Docket Entry No.
9).
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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