Heather Carter v. John Chang et al

Filing 3

ORDER TO SHOW CAUSE by Magistrate Judge Alexander F. MacKinnon. Response to Order to Show Cause due by 10/28/2016. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HEATHER CARTER,
Petitioner,

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Case No. CV 16-07231 SJO (AFM)
ORDER TO SHOW CAUSE

v.
JOHN CHANG, et al.,
Respondents.

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On September 7, 2016, petitioner constructively filed a Petition for Writ of

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Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254).

Petitioner

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currently is on probation for her convictions of offering to sell a controlled

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substance and possession for sale of a controlled substance. For the following

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reasons, petitioner is ordered to show cause why the Petition should not be

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dismissed as untimely.

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Since this action was filed after the President signed into law the

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Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) on April 24,

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1996, it is subject to the AEDPA’s one-year limitation period, as set forth at 28

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U.S.C. § 2244(d). See Calderon v. United States District Court for the Central

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District of California (Beeler), 128 F.3d 1283, 1287 n.3 (9th Cir. 1997). 28 U.S.C.

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§ 2244(d) provides:

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“(1) A 1-year period of limitation shall apply to an application

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for a writ of habeas corpus by a person in custody pursuant to the

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judgment of a State court. The limitation period shall run from the

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latest of-(A)

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the date on which the judgment became final by

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conclusion of direct review or the expiration of the time for seeking

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such review;

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(B)

the date on which the impediment to filing an

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application created by State action in violation of the Constitution or

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laws of the United 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 right asserted

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was initially recognized by the Supreme Court, if the right has been

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newly recognized by the Supreme Court and made retroactively

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applicable to cases on collateral review; or

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(D)

the date on which the factual predicate of the claim

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or claims presented could have been discovered through the exercise

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of due diligence.”

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Here, it appears from the face of the Petition that the California Court of

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Appeal affirmed petitioner’s judgment of conviction on November 4, 2014. Under

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the California Rules of Court, petitioner’s deadline to file a Petition for Review in

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the California Supreme Court was 40 days later. See Gaston v. Palmer, 417 F.3d

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1030, 1033 (9th Cir. 2005). Petitioner failed to do so. Thus, “the date on which the

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judgment became final by conclusion of direct review or the expiration of the time

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for seeking such review” was December 14, 2014. See 28 U.S.C. § 2244(d)(1)(A).

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It does not appear that a later start date is warranted because of an

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unconstitutional state action, a newly-recognized constitutional right, or later
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discovery of the factual predicate of his claim. See 28 U.S.C. § 2244(d)(1)(B)-(D).

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For example, petitioner would not be entitled to a later start date under

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§ 2244(d)(1)(D) because the underlying facts of her claims would have been known

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to her at the time of her trial. It makes no difference that petitioner may not have

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learned the legal significance of those facts until later. See Ford v. Gonzalez, 683

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F.3d 1230, 1235 (9th Cir. 2012) (for purposes of a delayed limitation start date

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under § 2244(d)(1)(D), “[t]he ‘due diligence’ clock starts ticking when a person

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knows or through diligence could discover the vital facts, regardless of when their

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legal significance is actually discovered”) (citing Hasan v. Galaza, 254 F.3d 1150,

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1154 n.3 (9th Cir. 2001)).

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Accordingly, petitioner’s starting date was December 14, 2014, and her

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deadline to file a habeas petition in this Court was one year later, on December 14,

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2015.

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California courts (in January 2016, May 2016, and August 2016) could reinitiate

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the limitation period. Contrary to petitioner’s contention, she would not be entitled

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to statutory tolling for any of these state habeas petitions.

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Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that § 2244(d) “does not

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permit the reinitiation of the limitations period that has ended before the state

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petition was filed,” even if the state petition was timely under state law); Jiminez v.

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Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-

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99 (9th Cir. 2001). Her federal habeas petition, which was constructively filed on

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September 7, 2016, is therefore facially untimely by almost nine months.

None of the habeas petitions that petitioner subsequently filed in the

See Ferguson v.

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In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court held that the

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AEDPA’s one-year limitation period also is subject to equitable tolling in

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appropriate cases.

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petitioner must show both that (1) she has been pursuing his rights diligently, and

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(2) some extraordinary circumstance stood in her way and prevented her timely

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filing. See Holland, 560 U.S. at 629 (quoting Pace, 544 U.S. at 418). The Ninth

However, in order to be entitled to equitable tolling, the

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Circuit has held that the Pace standard is consistent with the Ninth Circuit’s

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“sparing application of the doctrine of equitable tolling.” See Waldron-Ramsey v.

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Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Thus, “[t]he petitioner must show

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that ‘the extraordinary circumstances were the cause of his untimeliness and that

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the extraordinary circumstances made it impossible to file a petition on time.’”

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Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting Ramirez v. Yates, 571

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F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger equitable

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tolling [under AEDPA] is very high, lest the exceptions swallow the rule.”

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Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). Consequently, as the

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Ninth Circuit has recognized, equitable tolling will be justified in few cases. See

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Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); see also Waldron-Ramsey,

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556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary circumstances’

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necessarily suggests the doctrine’s rarity, and the requirement that extraordinary

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circumstances ‘stood in his way’ suggests that an external force must cause the

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untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or

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negligence on [the petitioner’s] part, all of which would preclude the application of

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equitable tolling.’”).

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Here, it does not appear from the face of the Petition or the attachments that

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petitioner has any basis for equitable tolling of the limitation period. Specifically,

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petitioner cannot show entitlement to equitable tolling merely because her appellate

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counsel filed a Wende brief and failed to file a Petition for Review in the California

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Supreme Court. See Perea v. Montgomery, 2015 WL 3882803, at *4 (C.D. Cal.

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June 23, 2015) (equitable tolling was not warranted where petitioner’s appellate

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counsel had filed a Wende brief); Carillo v. Soto, 2014 WL 6389369, at *6 (C.D.

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Cal. Nov. 14, 2014) (same); Venable v. Small, 2009 WL 3233910, at *7-*8 (C.D.

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Cal. Sept. 30, 2009) (same where petitioner’s appellate counsel had filed a Wende

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brief and had not filed a Petition for Review).

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Moreover, as a general matter, neither the lack of legal sophistication, nor the

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lack of legal training, nor the lack of legal assistance, nor ignorance of the law,

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constitutes an “extraordinary circumstance” entitling petitioner to any equitable

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tolling of the limitation period. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154

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(9th Cir. 2006) (holding that “a pro se petitioner’s lack of legal sophistication is not,

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by itself, an extraordinary circumstance warranting equitable tolling” of the

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AEDPA limitations period); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)

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(ignorance of the limitation period did not warrant equitable tolling); Miller v.

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Marr, 141 F.3d 976, 978 (10th Cir. 1998) (petitioner’s alleged lack of access to law

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library materials and resulting unawareness of the limitation period until it was too

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late did not warrant equitable tolling); Gazzeny v. Yates, 2009 WL 294199, at *6

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(C.D. Cal. Feb. 4, 2009) (noting that “[a] prisoner’s illiteracy or ignorance of the

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law do not constitute extraordinary circumstances” for purposes of tolling of the

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AEDPA statute of limitations); Singletary v. Newland, 2001 WL 1220738, at *2

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(N.D. Cal. Sept. 28, 2001) (“A misunderstanding of the complexities of federal

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habeas relief is not considered an extraordinary circumstance or external factor for

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purposes of avoiding an otherwise valid dismissal, as complete illiteracy does not

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even provide a sufficient basis for equitable tolling.”); see also Barrow v. New

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Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991) (holding that neither “lack of

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knowledge of applicable filing deadlines,” nor “unfamiliarity with the legal

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process,” nor “lack of representation during the applicable filing period,” nor

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“illiteracy,” provides a basis for equitable tolling).

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Nor does it appear that petitioner was pursuing her rights diligently so as to

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warrant application of equitable tolling, particularly because she was not

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incarcerated during the limitation period.

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The Ninth Circuit has held that the district court has the authority to raise the

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statute of limitations issue sua sponte when untimeliness is obvious on the face of

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the Petition and to summarily dismiss a habeas petition on that ground pursuant to
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Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts, so long as the Court “provides the petitioner with adequate notice and an

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opportunity to respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir.

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2004); Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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IT THEREFORE IS ORDERED that, on or before October 28, 2016,

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petitioner show cause in writing, if any she has, why the Court should not

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recommend that this action be dismissed with prejudice on the ground of

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untimeliness.

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Instead of filing a response to the instant Order, petitioner may request a

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voluntary dismissal of this action without prejudice pursuant to Federal Rule of

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Civil Procedure 41(a). A Notice of Dismissal form is attached for petitioner’s

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convenience.

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Petitioner is expressly warned that failure to timely file a response to this

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Order will result in a recommendation that this action be dismissed with

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prejudice for her failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b).

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The Clerk of the Court is directed to serve a copy of this Order upon
petitioner at her address of record.

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DATED: 9/28/2016

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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Attachment: CV-09

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