Randy Rogers v. Eric Arnold

Filing 4

ORDER TO SHOW CAUSE WHY HABEAS PETITION SHOULD NOT BE DISMISSED AS UNTIMELY by Magistrate Judge Karen E. Scott. On or before September 1, 2017, Petitioner show cause in writing, if any he has, why the Court should not recommend that this action be dismissed with prejudice on the ground of untimeliness. (jdo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. CV 17-05572-CJC (KES) RANDY ROGERS, Petitioner, v. ERIC ARNOLD, Warden, ORDER TO SHOW CAUSE WHY HABEAS PETITION SHOULD NOT BE DISMISSED AS UNTIMELY Respondent. 16 17 On July 24, 2017, Randy Rogers (“Petitioner”) constructively filed a Petition 18 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 19 (“Petition”). (Dkt. 1.) As discussed more fully below, the Court orders Petitioner to 20 show cause why the Petition should not be dismissed as untimely. 21 I. 22 PROCEDURAL HISTORY 23 The following facts are taken from the Petition and its exhibits, from the 24 Court’s own records, or from public records; where necessary, the Court takes 25 judicial notice of the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially 26 notice a fact that is not subject to reasonable dispute because it . . . can be accurately 27 and readily determined from sources whose accuracy cannot reasonably be 28 questioned.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court 1 1 may take judicial notice of its own records in other cases, as well as the records of an 2 inferior court in other cases.”) 3 A. Petitioner’s Underlying Conviction. 4 In 2011, Petitioner was convicted by a Los Angeles County Superior Court 5 jury of twelve counts of robbery. See People v. Rogers, 2012 WL 3765145, at *1 6 (Cal. App. 2d Aug. 31, 2012). In a bifurcated proceeding, the superior court found 7 true allegations that Petitioner had suffered four prior strike convictions, served two 8 prior prison terms, and suffered two prior serious felony convictions. Id. Petitioner 9 was sentenced to 160 years to life in state prison. Id. 10 On August 31, 2012, the Court of Appeal affirmed Petitioner’s conviction in 11 an unpublished opinion. (Id.) Petitioner’s Petition for Review to the California 12 Supreme Court was denied on November 14, 2012. (Dkt. 1 at 2.) 13 B. Petitioner’s State Court Habeas Proceedings. The state habeas petitions filed by Petitioner are as follows1: 14 15 Filing Date Court Case No. Disposition 16 August 23, California Court of B243430 Denied, October 12, 2012 17 2012 Appeal 18 October 24, California Supreme S206175 Denied, November 28, 19 2012 Court 20 November 2, California Court of 21 2012 Appeal 22 January 7, California Supreme 23 2013 Court 24 October 29, Los Angeles County 25 2016 Superior Court 2012 B244904 Denied, January 4, 2013 S208055 Denied, February 20, 2013 YA074167 Denied, December 15, 2016 26 1 27 28 The Court compiled this list from a review of the Petition and its attachments, as well as records from the California Court of Appeal website. It may be incomplete with respect to petitions filed in the Los Angeles County Superior Court. 2 1 January 17, California Court of 2017 Appeal February 27, California Supreme 2017 Court 2 3 4 5 6 7 C. 16 The Instant Federal Habeas Petition. (2012) because it “was imposed under an unconstitutional mandatory minimum sentencing law.” (Dkt. 1 at 5.) Ground Two: “The Three Strikes Law is an arbitrarily applied sentencing scheme that unconstitutionally limits individualized decision-making.” (Id.) Ground Three: California’s Three Strikes Law “is implicitly biased and has been implemented in ways that violate Petitioner’s Fourteenth Amendment rights to equal protection of the laws.” (Id. at 6.) 17 II. 18 LEGAL STANDARD 19 20 21 22 23 24 25 26 27 Denied, April 12, 2017 Ground One: Petitioner’s sentence violates Miller v. Alabama, 567 U.S. 460 14 15 S240276 Petitioner raises the following three claims: 12 13 January 20, 2017 Petition. 9 11 Denied, Petitioner’s 2016 round of state petitions raise the claims brought in the instant 8 10 B280118 The Ninth Circuit has held that the district court has the authority to raise the statute of limitations issue sua sponte when untimeliness is obvious on the face of the Petition and to summarily dismiss a habeas petition on that ground pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, so long as the Court “provides the petitioner with adequate notice and an opportunity to respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A. One-Year Statute of Limitations. This action is subject to the Antiterrorism and Effective Death Penalty Act of 28 3 1 1996 (“AEDPA”). Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal. (Beeler), 2 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998).2 AEDPA 3 provides as follows: 4 (d) (1) A 1-year period of limitation shall apply to an application for a 5 writ of habeas corpus by a person in custody pursuant to the judgment 6 of a State court. The limitation period shall run from the latest of-- 7 (A) the date on which the judgment became final by the 8 conclusion of direct review or the expiration of the time for seeking 9 such review; 10 (B) the date on which the impediment to filing an application 11 created by State action in violation of the Constitution or laws of the 12 United States is removed, if the applicant was prevented from filing by 13 such State action; 14 (C) the date on which the constitutional right asserted was 15 initially recognized by the Supreme Court, if the right has been newly 16 recognized by the Supreme Court and made retroactively applicable to 17 cases on collateral review; or 18 (D) the date on which the factual predicate of the claim or claims 19 presented could have been discovered through the exercise of due 20 diligence. 21 (2) The time during which a properly filed application for State post- 22 conviction or other collateral review with respect to the pertinent 23 judgment or claim is pending shall not be counted toward any period of 24 limitation under this subsection. 25 28 U.S.C. § 2244(d). 26 Beeler was overruled on other grounds in Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060 (1999). 2 27 28 4 1 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 2 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). 3 The statute of limitations period generally runs from “the date on which the judgment 4 became final by the conclusion of direct review or the expiration of the time for 5 seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “[F]or a state prisoner who does 6 not seek review in a State’s highest court, the judgment becomes ‘final’ for purposes 7 of § 2244(d)(1)(a) on the date that the time for seeking such review expires.” 8 Gonzalez v. Thaler, 565 U.S. 134, 135 (2012). In contrast, where a state defendant 9 seeks direct review in a state’s highest court, the judgment becomes final when time 10 for seeking certiorari review in the U.S. Supreme Court expires. See Jimenez, 555 11 U.S. at 120. This is because the U.S. Supreme Court has jurisdiction over final 12 decisions of the highest state court “in which a decision could be had” respecting a 13 constitutional right or other federal law. 28 U.S.C. § 1257(a). To appeal to the U.S. 14 Supreme Court, a petition for writ of certiorari must be filed within 90 days after 15 entry of the state court judgment. U.S. Sup. Ct. R. 13. 16 III. 17 DISCUSSION 18 A. The Petition is Untimely on its Face. 19 Petitioner states that he was sentenced in April 2011. (Dkt. 1 at 2.) His Petition 20 for Review to the California Supreme Court was denied on November 14, 2012. (Id. 21 at 3.) If the statute of limitations runs from the date when his sentence became final 22 under § 2244(d)(1)(A), then his time for filing a federal habeas petition expired on 23 February 12, 2014, one year and 90 days after final judgment was entered. 24 Accordingly, the Petition is untimely unless Petitioner is entitled to statutory or 25 equitable tolling. 26 B. Petitioner has not Shown that he is Entitled to Statutory Tolling. 27 AEDPA provides for statutory tolling, as follows: 28 The time during which a properly filed application for State post5 1 conviction or other collateral review with respect to the pertinent 2 judgment or claim is pending shall not be counted toward any period of 3 limitation under this subsection. 4 28 U.S.C. § 2244(d)(2). The United States Supreme Court has interpreted this 5 language to mean that the AEDPA’s statute of limitations is tolled from the time the 6 first state habeas petition is filed until the California Supreme Court rejects a 7 petitioner’s final collateral challenge, so long as the petitioner has not unreasonably 8 delayed during the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 9 219-21 (2002) (holding that, for purposes of statutory tolling, a California petitioner’s 10 application for collateral review remains pending during the intervals between the 11 time a lower state court denies the application and the time the petitioner files a 12 further petition in a higher state court); Nino v. Galaza, 183 F.3d 1003, 1006 (9th 13 Cir.), cert. denied, 529 U.S. 1104 (2000) (The statute is tolled from “the time the first 14 state habeas was filed until the California Supreme Court rejects the petitioner’s final 15 collateral challenge.”). Statutory tolling “does not permit the reinitiation of a 16 limitations period that has ended before the state petition was filed,” even if the state 17 petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. 18 denied, 540 U.S. 924 (2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); 19 Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. denied, 534 U.S. 20 1143 (2002). 21 Petitioner filed two rounds of state habeas petitions before his AEDPA statute 22 of limitations expired. Even assuming that those petitions were properly filed and 23 therefore qualified for statutory tolling, the latest AEDPA deadline he could receive 24 would expire on February 20, 2014, one year after his second California Supreme 25 Court petition (Case No. S208055) was denied. Petitioner is not entitled to statutory 26 tolling for the pendency of the state petitions filed in 2016 and 2017, because they 27 were not initiated during the AEDPA limitations period. 28 6 1 C. Petitioner has not Shown that He is Entitled to Equitable Tolling. 2 In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that 3 the AEDPA’s one-year limitation period also is subject to equitable tolling in 4 appropriate cases. However, in order to be entitled to equitable tolling, the petitioner 5 must show both that (1) he has been pursuing his rights diligently, and (2) some 6 extraordinary circumstance stood in his way and prevented his timely filing. See 7 Holland, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 8 The Ninth Circuit has held that the Pace standard is consistent with the Ninth 9 Circuit’s “sparing application of the doctrine of equitable tolling.” Waldron-Ramsey 10 v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009). 11 Thus, “[t]he petitioner must show that ‘the extraordinary circumstances were the 12 cause of his untimeliness and that the extraordinary circumstances made it impossible 13 to file a petition on time.’” Porter, 620 F.3d at 959 (quoting Ramirez v. Yates, 571 14 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger equitable tolling 15 [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. 16 Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S. 1003 (2002). 17 Consequently, as the Ninth Circuit has recognized, equitable tolling will be justified 18 in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Waldron-Ramsey, 19 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary circumstances’ necessarily 20 suggests the doctrine’s rarity, and the requirement that extraordinary circumstances 21 ‘stood in his way’ suggests that an external force must cause the untimeliness, rather 22 than, as we have said, merely ‘oversight, miscalculation or negligence on [the 23 petitioner’s] part, all of which would preclude the application of equitable tolling.’”). 24 The burden of demonstrating that the AEDPA’s one-year limitation period was 25 sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, 26 e.g., Pace, 544 U.S. at 418; Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); Gaston 27 v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (as amended); Miranda v. Castro, 292 28 F.3d 1063, 1065 (9th Cir. 2002). Petitioner has not described any circumstances in 7 1 his Petition that might create equitable tolling. 2 IV. 3 CONCLUSION 4 IT IS THEREFORE ORDERED that, on or before September 1, 2017, 5 Petitioner show cause in writing, if any he has, why the Court should not recommend 6 that this action be dismissed with prejudice on the ground of untimeliness. 7 8 DATED: August 03, 2017 9 10 11 ___________________________________ KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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