Hal Lee Moore v. Shawn Hatton et al

Filing 4

MINUTE ORDER (IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Steve Kim. Petitioner is hereby ORDERED TO SHOW CAUSE on or before May 5, 2017, why the Court should not dismiss the Petition as untimely under AEDPA. (Attachments: # 1 Voluntary Dismissal) (mkr)

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

2:17-CV-02269-SVW (SK)

Title

Hal Lee Moore v. Shawn Hatton et al

Present: The Honorable

Date

April 5, 2017

Steve Kim, U.S. Magistrate Judge

Marc Krause

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE

On March 23, 2017, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his 2009 state sentence of 15 years to life in prison for second-degree
murder. (ECF No. 1). On its face, the Petition appears subject to immediate dismissal because
it is untimely. The California Court of Appeal affirmed Petitioner’s conviction on August 23,
2010. (Cal Ct. App. B215307). Because Petitioner failed to file a petition for review in the
California Supreme Court, his conviction became final when his time to seek such review
expired. See Gonzalez v. Thaler, 132 S. Ct. 641, 646 (2012) (When a state prisoner “does not
seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for
seeking such review expires.”). In California, a Court of Appeal decision becomes final 30 days
after issuance, see Cal. R. Ct. 8.366(b)(1), and a petition for review of a Court of Appeal
decision must be filed in the California Supreme Court “within 10 days after the Court of
Appeal decision is final.” Cal. R. Ct. 8.500(e)(1)(A). Thus, Petitioner’s conviction became final
for AEDPA purposes 40 days after August 23, 2010. From that date, Petitioner had one year in
which to file a federal habeas petition in 2011. See 28 U.S.C. § 2244(d)(1)(A) (a federal habeas
petitioner must file a petition within one year of “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such review.”).
Hence, the Petition is untimely on its face by more than five years pursuant to § 2244(d)(1)(A).
Nor is the Petition made timely, as Petitioner argues, by the new rule announced by the
U.S. Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015). Petitioner claims
that the California Penal Code section under which he was convicted, section 187(a), is
unconstitutionally vague in light of Johnson, which was decided in June 2015, well after his
state conviction became final in 2010. (Pet., Memo at 3-4). A federal petition based on a
newly-established federal right may be timely under AEDPA if filed within one year from “the
date on which the constitutional right asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). But Johnson, which held that the
residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was
unconstitutionally vague, applies only to those federal prisoners who received increased federal
sentences under the ACCA, a federal statute. Johnson, 135 S. Ct. at 2557, 2263. It is not
CV-90 (10/08)

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

2:17-CV-02269-SVW (SK)

Title

Date

April 5, 2017

Hal Lee Moore v. Shawn Hatton et al

applicable to Petitioner’s state conviction under the California Penal Code. Johnson did not
announce a new rule that could have directly invalidated Petitioner’s state conviction or
sentence. Indeed, Petitioner could have made his void-for-vagueness argument sooner, within
the limitations period, irrespective of Johnson. The mere fact that Johnson, if decided earlier,
could have arguably provided persuasive support for a vagueness challenge does not mean that
once announced later it created a new constitutional rule resetting the one-year limitations
period.
In any case, even if Johnson had somehow announced a new rule retroactively
applicable to Petitioner’s state conviction and sentence, the Petition would still be untimely
under § 2244(d)(1)(C). Although Johnson was made retroactively applicable on April 18,
2016, see Welch v. United States, 136 S. Ct. 1257 (2016), the one-year limitations period
under § 2244(d)(1)(C) runs from the date that the Supreme Court decided Johnson – not from
the date of the decision in Welch that made Johnson retroactive applicable. See Dodd v.
United States, 545 U.S. 353, 357–59 (2005) (limitations period under § 2244(d)(1)(C) begins
to run when Supreme Court recognizes right, not when right becomes retroactively applicable).
Therefore, any claim predicated on Johnson expired on June 26, 2016 – one year from the date
that the Supreme Court decided Johnson in June 2015. Because the present Petition was filed
on March 23, 2017, it remains untimely by almost nine months notwithstanding the
limitations period under § 2244(d)(1)(C).
THEREFORE, Petitioner is hereby ORDERED TO SHOW CAUSE on or before May
5, 2017, why the Court should not dismiss the Petition as untimely under AEDPA. If
Petitioner does not file a timely response to this Order to Show Cause, Petitioner
is advised that the Court may recommend dismissal of the Petition for failure to
prosecute. See Fed. R. Civ. P 41(b); L.R. 41-1. If Petitioner no longer wishes to
pursue this action because he agrees it is untimely or otherwise lacking in merit,
he may voluntarily dismiss the action pursuant to Federal Rule of Civil Procedure
41(a) by filing a “Notice of Dismissal.” The Clerk is directed to provide Petitioner with a
Notice of Dismissal Form (CV-009).

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