David Turner v. Randy Grounds

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that on or before October 29, 2014, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action because it is untimely for the rea sons stated above. If Petitioner seeks to rely on the equitable tolling doctrine, he must provide detailed factual allegations and evidentiary support, at least through his own sworn declaration, that his placement in SHU and lack of access to the law library completely prevented him from filing his federal Petition at any time between when the AEDPA statute of limitations expired and September 2014. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID TURNER,

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Petitioner,

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vs.
RANDY GROUNDS, Warden,

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Respondent.

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) Case No. CV 14-7409-RGK (JPR)
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) ORDER TO SHOW CAUSE
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On September 23, 2014, Petitioner filed a Petition for Writ

18 of Habeas Corpus by a Person in State Custody.

The Petition

19 challenges Petitioner’s 1997 conviction and 39-years-to-life
20 sentence in Los Angeles County Superior Court for robbery and
21 firearms offenses.

(Pet. at 2.)

Petitioner raises three claims,

22 all of which he asserts he raised on direct appeal.1

(Id. at 5-

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Petitioner has attached to the Petition a pro se “petition
for review” raising some additional claims along with the claims in
the Petition; it is not clear whether this document was ever
actually filed in the California Supreme Court.
In any event,
because Petitioner clearly lists only three issues in the part of
the Petition requiring him to list his claims (Pet. at 5-6), the
Court does not consider these additional claims to be properly part
of the Petition.
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1 6.)

Petitioner claims that he raised these issues in a petition

2 for review that was denied on some unknown date (id. at 7),
3 although the Court was unable to locate such a filing on the
4 California Appellate Courts’ Case Information website.
5 Petitioner states that he did not file any state habeas
6 petitions.
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(Id.)

Under the Antiterrorism and Effective Death Penalty Act of

8 1996 (“AEDPA”), a petitioner generally has one year from the date
9 his conviction became final to file a federal habeas petition.
10 See 28 U.S.C. § 2244(d).
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(1)

That statute provides:

A 1-year period of limitation shall apply to an

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application for a writ of habeas corpus by a person in

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custody pursuant to the judgment of a State court.

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limitation period shall run from the latest of--

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(A)

The

the date on which the judgment became

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final by the conclusion of direct review or the

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expiration of the time for seeking such review;

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(B)

the

date

on

which

the

impediment

to

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filing an application created by State action in

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violation of the Constitution or laws of the United

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States is removed, if the applicant was prevented

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from filing by such State action;

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(C)

the

date

on

which

the

constitutional

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right asserted was initially recognized by the

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Supreme

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recognized

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retroactively applicable to cases on collateral

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review; or

Court,
by

if
the

the

right

Supreme

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has
Court

been

newly

and

made

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(D)

the date on which the factual predicate

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of the claim or claims presented could have been

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discovered through the exercise of due diligence.

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(2)

The

time

during

which

a

properly

filed

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application for State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is

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pending

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limitation under this subsection.

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From the information before it the Court is unable to

shall

not

be

counted

toward

any

period

of

10 discern exactly when Petitioner’s conviction became final, but it
11 was apparently sometime in the late 1990s.

Using the state court

12 of appeal number on Petitioner’s attached “petition for review,”
13 the Court has confirmed through the state Appellate Courts’ Case
14 Information website that his direct appeal was denied by the
15 court of appeal on October 27, 1998.

If he did not file a

16 petition for review, his convictions became final 40 days later,
17 see Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008); if he
18 did, they presumably became final sometime around the turn of the
19 century.

Thus, absent some kind of tolling or a later trigger

20 date, Petitioner had until the early 2000s to file his federal
21 Petition.

He did not file it until late 2014, seemingly a decade

22 and a half late.
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In certain circumstances, a habeas petitioner may be

24 entitled to equitable tolling.
25 631, 645 (2010).

See Holland v. Florida, 560 U.S.

But he must show that (1) he has been pursuing

26 his rights diligently and (2) “some extraordinary circumstance
27 stood in his way.”

See Pace v. DiGuglielmo, 544 U.S. 408, 418

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1 (2005).2
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Apparently recognizing that his Petition on its face is

3 untimely, Petitioner has offered the following explanation for
4 why it was not filed earlier: “Due to being housed in
5 Administrative Segregation (SHU) and not being able to have
6 immediate access to the law library I was unable to meet AEDPA
7 deadline.”
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(Pet. at 3.)

These conclusory assertions, without specific details or

9 evidentiary support, cannot warrant equitable tolling sufficient
10 to render the Petition timely, particularly given the lengthy
11 period of delay at issue in this case.

See Williams v. Dexter,

12 649 F. Supp. 2d 1055, 1061–62 (C.D. Cal. 2009) (conclusory
13 assertions of limited law library access unsupported by competent
14 evidence inadequate to state basis for equitable tolling);
15 Hernandez v. Neven, No. 2:13-cv-01459-APG-NJK, 2014 WL 3105212,
16 at *4 (D. Nev. July 7, 2014) (“Nor does petitioner’s conclusory
17 assertion that he was in solitary confinement for some
18 unspecified period of time, and under unspecified conditions as
19 to court and legal resource access, establish a basis for
20 equitable tolling for a decade . . . .”).
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A district court has the authority to raise the statute-of-

22 limitations issue sua sponte when untimeliness is obvious on the
23 face of a petition; it may summarily dismiss the petition on that
24 ground pursuant to Rule 4 of the Rules Governing § 2254 Cases in
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Apparently neither statutory tolling nor a later trigger date

27 can apply here, because Petitioner acknowledges that he did not
file any state habeas petitions and because he apparently raised
28 the Petition’s three claims on direct appeal.
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1 the U.S. District Courts, as long as the court gives petitioner
2 adequate notice and an opportunity to respond.

Herbst v. Cook,

3 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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IT THEREFORE IS ORDERED that on or before October 29, 2014,

5 Petitioner show cause in writing, if he has any, why the Court
6 should not dismiss this action because it is untimely for the
7 reasons stated above.

If Petitioner seeks to rely on the

8 equitable tolling doctrine, he must provide detailed factual
9 allegations and evidentiary support, at least through his own
10 sworn declaration, that his placement in SHU and lack of access
11 to the law library completely prevented him from filing his
12 federal Petition at any time between when the AEDPA statute of
13 limitations expired and September 2014.

Further, Petitioner is

14 advised that his failure to timely and sufficiently comply with
15 this Order may result in his Petition being dismissed for the
16 reasons stated herein and for failure to prosecute.
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18 DATED: September 30, 2014
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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