Junior Moore v. J. Gustello

Filing 8

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED DUE TO FAILURE TO SIGN, AS UNTIMELY, AND/OR DUE TO FAILURE TO EXHAUST by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 10/21/2017. (SEE ORDER FOR DETAILS) (Attachments: # 1 Notice of Dismissal Form) (dts)

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

CV 17-6699-VAP (KK)

Date: September 22, 2017

Title: Junior Moore v. J. Gustello

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Petitioner:

Attorney(s) Present for Respondent:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed Due to Failure to Sign, As Untimely, and/or Due to Failure to
Exhaust
I.
INTRODUCTION

On August 26, 2017, Demond Hershawn Little (“Little”), purportedly on behalf of
Petitioner Junior Moore (“Petitioner”), constructively filed1 a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (the “Petition”). ECF Docket No. (“Dkt.”) 1.2 For the reasons
set forth below, the Petition appears subject to dismissal. The Court will not make a final
1

Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to
court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Here, however, Petitioner neither signed nor
dated the Petition. In fact, the signature page of the form petition appears to be missing.
However, Petitioner signed his Request for Appointment of Counsel and Declaration of
Indigency, which was dated as August 26, 2017. ECF Docket No. (“Dkt.”) 3. Therefore, the
Court deems August 26, 2017 the constructive filing date without prejudice.
2
The Court refers to the pages of the Petition as they are consecutively numbered by the Court’s
electronic docketing system. While the instant Petition was prepared on a standardized form, the
Petition appears to be missing pages two, four, six, eight, and ten of the first ten pages, and page
two in the Request to Proceed Without Prepaying of Filing Fees with Declaration in Support.
Dkt. 1.
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determination regarding whether the federal Petition should be dismissed, however, without
giving Petitioner an opportunity to address these issues.
Accordingly, the Court hereby issues this Order to Show Cause why the Petition should
not be dismissed, and specifically orders Petitioner to respond to the Order to Show Cause in
writing no later than October 12, 2017. The Court further directs Petitioner to review the
information that follows, which provides additional explanation as to why the federal Petition
appears to be subject to dismissal and may assist Petitioner in determining how to respond.
II.
BACKGROUND
On March 25, 2014, following a jury trial in California Superior Court for the County of
Los Angeles, Petitioner was convicted of arson of an inhabited structure in violation of Section
451(b) of the California Penal Code. See People v. Moore, No. B255353, 2015 WL 4751619, at *1
(Cal. Ct. App. Aug. 12, 2015).3 Petitioner was sentenced to twenty-five years to life term for
arson under the Three Strikes Law (Section 667 (b)-(j) of the California Penal Code), plus two
consecutive five-year terms (Section 667(a)). Id.
On April 2, 2014, Petitioner filed a direct appeal in the California Court of Appeal. See
California Courts, Appellate Courts Case Information, Case Summary (Sept. 19, 2017, 3:11 PM),
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=2&doc_id=20734
63&doc_no=B255353. On August 12, 2015, the California Court of Appeal affirmed Petitioner’s
conviction. Id.
On August 26, 2017, Little, purportedly on behalf of Petitioner, constructively filed the
instant Petition. Dkt. 1.
III.
DISCUSSION
A.

THE PETITION IS NOT SIGNED BY PETITIONER AND IS SUBJECT TO
DISMISSAL

The district court may dismiss or refuse to file a petition that is unsigned or unverified by
the petitioner. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990); Application of
Gibson, 218 F.2d 320 (9th Cir. 1954), cert. denied, 348 U.S. 955 (1955).
Generally, a non-lawyer may not represent in litigation anyone other than himself. See
Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998); Johns v. Cty. of San Diego, 114 F.3d 874, 877
(9th Cir. 1997); see L.R. 83-2.10.2 (“A non-attorney guardian for a minor or an incompetent
3

The Court takes judicial notice of Petitioner’s prior proceedings in this Court and in the state
courts. See In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011).
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person must be represented by counsel.”). To bring a habeas petition on behalf of another, a
“putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to
mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has
some significant relationship with, and is truly dedicated to the best interests of, the petitioner.”
Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001). However, “‘next friend’
standing is by no means granted automatically to whomever seeks to pursue an action on behalf of
another.” Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S. Ct. 1717, 109 L. Ed. 2. 135 (1990).
Petitioner’s “next friend” must present “‘meaningful evidence’ that petitioner is suffering from
a mental disease, disorder, or defect that substantially affects his capacity to make an intelligent
decision.” Woodford, 244 F.3d at 1196 (citing Whitmore, 495 U.S. at 166).
Here, Petitioner did not sign the Petition. Petitioner’s friend and fellow inmate, Little,
purports to bring this action pro se on behalf of Petitioner. Dkt. 1, Pet. at 8.4 Little claims
Petitioner is “mentally ill and has been housed in a mental setting for[] a [number] of [years],
which place him under the American Disability Act (ADA) and EOP.” Dkt. 1, Pet. at 3.
However, Little does not meet the two prongs of next friend standing because he does not (1)
present “meaningful evidence” that Petitioner’s capacity is substantially affected to make an
intelligent decision; or (2) present any evidence that he has “some significant relationship with,
and is truly dedicated to the best interest of” Petitioner. Furthermore, Little did not sign the
Petition because the signature page of the form petition appears to be missing. Thus, without
next friend standing and Little’s signature, the Petition is subject to dismissal because it is not
signed by Petitioner.
B.

THE PETITION IS UNTIMELY AND IS SUBJECT TO DISMISSAL
1.

THE PETITION WAS FILED AFTER AEDPA’S ONE-YEAR
LIMITATIONS PERIOD

Petitioner filed the Petition after April 24, 1996, the effective date of AEDPA. Dkt. 1.
Therefore, the requirements for habeas relief set forth in AEDPA apply. Soto v. Ryan, 760 F.3d
947, 956-57 (9th Cir. 2014). AEDPA “sets a one-year limitations period in which a state prisoner
must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir.
2012) (citation omitted). Ordinarily, the limitations period runs from the date on which the
prisoner’s judgment of conviction “became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1) (“Section 2244(d)(1)”).
If a petitioner files a direct appeal to a state appellate court but no petition for review to the
highest state court, the conviction becomes final forty days after the state appellate court issues

4

In a Declaration for Counsel, Petitioner’s friend and fellow inmate wrote, “I am not a part of
this action, but ha[ve] gr[eat] concern for a friend of min[e] for years, who is unable to file
pleading without the help of other inmates. He also do[es] [not] know he has rights to appeal[]
process. [T]his inmate should be granted counsel to conduct an Evidentiary hearing to
determin[e] his mental ability to file such petition, WRIT OF HABEAS.” Dkt. 1, Pet. at 8.
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its decision. Brown v. Sisto, 303 F. App’x 458, 459 (9th Cir. 2008) 5; see Cal. R. Ct. 8.366(b)(1)
(“[A] Court of Appeal decision in a [criminal] proceeding . . . , including an order dismissing an
appeal involuntarily, is final in that court 30 days after filing.”); Cal. R. Ct. 8.500(e)(1) (“A
petition for review must be served and filed within 10 days after the Court of Appeal decision is
final in that court.”).
Here, the California Court of Appeal affirmed Petitioner’s conviction on direct appeal on
August 12, 2015. Petitioner concedes he has not filed a petition for review with the California
Supreme Court of the Court of Appeal decision. Dkt. 1, Pet. at 2. A search of the California
Supreme Court’s website confirms no filings by any person with Petitioner’s name petitioned for
review with the California Supreme Court. Hence, Petitioner’s conviction became final on
September 21, 2015, forty days after the California Court of Appeal issued its decision denying
Petitioner’s direct appeal on August 12, 2015. See Brown, 303 F. App’x at 459. AEDPA’s oneyear limitations period commenced the next day, September 22, 2015, and expired on September
22, 2016. See 28 U.S.C. § 2244(d)(1). However, Petitioner did not file the instant Petition until
August 26, 2017. Dkt. 1. Therefore, the Court deems the instant Petition untimely by over
eleven months, in the absence of any applicable tolling.
2.

STATUTORY TOLLING DOES NOT RENDER THE PETITION
TIMELY

“A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year statute of
limitations while a ‘properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.’” Nedds v. Calderon, 678 F.3d 777,
780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2) (“Section 2244(d)(2)”)). Statutory tolling
does not extend to the time between the date on which a judgment becomes final and the date on
which the petitioner files his first state collateral challenge because, during that time, there is no
case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, a petitioner is
entitled to statutory tolling (i.e. gap tolling) for reasonable periods between the filing of properly
filed applications for State post-conviction or other collateral review. Nedds, 678 F.3d at 781.
Moreover, “[S]ection 2244(d) does not permit the reinitiation of the limitations period that has
ended before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003) (citation omitted).
Here, Petitioner concedes he did not file any state habeas petitions. Dkt. 1, Pet. at 2, 3, 4.
Therefore, statutory tolling does not render the Petition timely.
3.

EQUITABLE TOLLING DOES NOT RENDER THE PETITION TIMELY

In addition to the statutory tolling provided for by Section 2244(d)(2), the “AEDPA
limitations period may be tolled” when it is “equitably required.” Doe v. Busby, 661 F.3d 1001,
5

The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. U.S.
Ct. App. 9th Cir. Rule 36-3(b); Fed R. App. P. 32.1(a).
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1011 (9th Cir. 2011). The “threshold necessary to trigger equitable tolling [under AEDPA] is
very high.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). A court may grant equitable
tolling only where “‘extraordinary circumstances’ prevented an otherwise diligent petitioner
from filing on time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). The petitioner
“bears a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions
swallow the rule.’” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015) (quoting Bills, 628 F.3d
at 1097).
Here, Petitioner does not appear to specifically identify any reasons entitling him to
equitable tolling, and the Court has not found any basis to support such a claim. Thus, equitable
tolling does not render the Petition timely. Bills, 628 F.3d at 1097.
C.

THE PETITION IS A WHOLLY UNEXHAUSTED PETITION SUBJECT TO
DISMISSAL

A state prisoner must exhaust his state court remedies before a federal court may consider
granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838,
842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). To satisfy the exhaustion requirement, a habeas
petitioner must fairly present his federal claims in the state courts in order to give the State the
opportunity to pass upon and correct alleged violations of the prisoner’s federal rights. Duncan
v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam). A habeas
petitioner must give the state courts “one full opportunity” to decide a federal claim by carrying
out “one complete round” of the state’s appellate process in order to properly exhaust a claim.
O’Sullivan, 526 U.S. at 845.
For a petitioner in California state custody, this generally means that the petitioner must
have fairly presented his claims in a petition to the California Supreme Court. See id.
(interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999)
(applying O’Sullivan to California). A claim has been fairly presented if the petitioner has both
“adequately described the factual basis for [the] claim” and “identified the federal legal basis for
[the] claim.” Gatlin, 189 F.3d at 888.
In this case, Petitioner raises two grounds for relief in his Petition: (1) Petitioner is
procedurally barred to file a writ in the California Supreme Court; and (2) Prosecutorial
Misconduct. Dkt. 1, Pet. at 3. Petitioner, however, concedes he has not raised any of his grounds
for relief to the California Supreme Court. Id. at 2, 3. Accordingly, it appears none of the
grounds Petitioner raises in the instant Petition have been ruled on by the California Supreme
Court. Thus, the Petition is a wholly unexhausted petition subject to dismissal.
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IV.
ORDER
For all of the foregoing reasons, the Petition appears subject to dismissal. Petitioner is
therefore ORDERED TO SHOW CAUSE why the Petition should not be dismissed by filing
written responses as set forth below no later than October 21 , 2017.
FIRST, Petitioner must address his failure to sign the Petition by either (1) clearly
explaining in writing and presenting evidence clearly articulating why Petitioner’s friend is
entitled to “next friend” standing to represent Petitioner; or (2) filing a signed First Amended
Petition. The First Amended Petition shall be complete in itself. It shall not refer in any manner
to the original Petition. In other words, Petitioner must start over when preparing the First
Amended Petition.
SECOND, Petitioner must address the apparent untimeliness of the Petition and failure
to exhaust his claims.
A. Petitioner is therefore ORDERED TO SHOW CAUSE in a written response
explaining why the Petition should not be dismissed as untimely. Petitioner is advised
to inform the Court of any reason demonstrating entitlement to statutory or equitable
tolling.
B. If Petitioner contends the Petition is timely, Petitioner is also ORDERED TO SHOW
CAUSE why the Petition should not be dismissed for failure to exhaust state remedies
by filing a written response. In doing so, Petitioner may choose from the following
options:
Option 1 - Petitioner May Explain The Petition Is Exhausted: If Petitioner
contends he has, in fact, exhausted his state court remedies on the grounds raised in
his Petition, he should clearly explain this in a written response to this Order to Show
Cause. Petitioner should attach to his response copies of any documents establishing
that grounds one and two are indeed exhausted.

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Option 2 - Petitioner May Request A Rhines Stay: Under Rhines v. Weber, 544
U.S. 269, 161 L. Ed. 2d 440, 161 L. Ed. 2d 440 (2005), a district court has discretion
to stay a petition to allow a petitioner time to present his unexhausted claims to state
courts. Id. at 276; Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016) (holding the
Rhines stay-and-abeyance procedure applies to both mixed and fully unexhausted
habeas petitions). This stay and abeyance procedure is called a “Rhines stay” and is
available only when: (1) there is “good cause” for the failure to exhaust; (2) the
unexhausted claims are not “plainly meritless”; and (3) the petitioner did not
intentionally engage in dilatory litigation tactics. Rhines, 544 U.S. at 277-78.
Petitioner may file a motion for a Rhines stay and support his request by showing: (1)
there is “good cause” for the failure to exhaust; (2) the grounds raised are not
“plainly meritless”; and (3) Petitioner did not intentionally engage in dilatory
litigation tactics. See id. Petitioner should include any evidence supporting his
request for a Rhines stay.
Caution: Petitioner is cautioned that if he requests a stay and the Court denies the
request for a stay, or if Petitioner contends that he has in fact exhausted his state court
remedies on all grounds and the Court disagrees, the Court will dismiss the Petition
for failure to exhaust state remedies. Accordingly, Petitioner may select options in
the alternative.
ALTERNATIVELY, Petitioner May Voluntarily Dismiss Action Without Prejudice:
Instead of filing a response to the instant Order, Petitioner may request a voluntary dismissal of
this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a). A Notice of
Dismissal form is attached for Petitioner’s convenience. The Court advises Petitioner, however,
that if Petitioner should later attempt to again raise any dismissed claims in a subsequent habeas
petition, those claims may be time-barred under the statute of limitations in Section 2244(d)(1).
28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.”).
The Court expressly warns Petitioner that failure to timely file a response to this
Order will result in the Court dismissing this action without prejudice for his failure to
comply with court orders and failure to prosecute. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Petitioner at his
current address of record.
IT IS SO ORDERED.

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