Antonio Bethell v. R. Madden

Filing 3

Order To Show Cause Why Petition Should Not Be Dismissed by Magistrate Judge Karen E. Scott. Response to Order to Show Cause due by 11/3/2017. Petitioner alternatively may request a voluntary dismissal of this action. If Petitioner chooses not to voluntarily dismiss his Petition, he shall either pay the filing fee or submit a request to proceed IFP on or before November 3, 2017. (Attachments: # 1 Notice of Dismissal Form, # 2 IFP Request Form) (jdo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:17-cv-07233-VAP-KES

Date: October 5, 2017

Title: ANTONIO BETHELL v. R. MADDEN - WARDEN
PRESENT:
THE HONORABLE KAREN E. SCOTT, U.S. MAGISTRATE JUDGE
Jazmin Dorado
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR
PETITIONER:
None Present

ATTORNEYS PRESENT FOR
RESPONDENT:
None Present

PROCEEDINGS (IN CHAMBERS):

Order To Show Cause Why Petition
Should Not Be Dismissed (Dkt. 1).

Antonio D. Bethell (“Petitioner”) filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 on October 2, 2017 (the “Petition”). (Dkt. 1.) Petitioner did not pay a filing fee
or file a request to proceed in forma pauperis (“IFP”). He purports to challenge his May 5, 2010
state sentence for first degree robbery and first degree burglary. (Dkt. 1 at 2; 9.) The Court has
screened the Petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts (“Rule 4”), and concludes that the Petition suffers deficiencies
summarized below. Petitioner is therefore ordered to show cause why this action should not be
dismissed by filing a written response on or before November 3, 2017.
I.

BACKGROUND.
Petitioner entered a plea of nolo contendere with respect to the relevant charges of robbery
and burglary. (Dkt. 1 at 2.) On May 5, 2010, he was sentenced in Los Angeles County Superior
Court to 10 years, 8 months. (Id. at 2, 9.) He is currently confined at Centinela State Prison in
Imperial, California. (Id. at 2.) His petition challenges the imposition of “concurrent” sentences
for robbery and burglary, asserting that those sentences constitute impermissible double
punishment in violation of California Penal Code § 654. (Dkt. 1 at 5.)1
1

Although the Petition uses the word “concurrent,” the attached abstract of judgment
reflects that Petitioner was in fact given “consecutive” sentences. (Dkt. 1 at 9.)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:17-cv-07233-VAP-KES

Date: October 5, 2017
Page 2

Based on records cited in the petition, and on online court records, Petitioner has filed a
number of habeas requests at various levels of state court. Headwaters Inc. v. United States Forest
Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (taking judicial notice of docket in another case).
In the Petition, Petitioner cites the following state court cases: California Court of Appeal Case
No. B250867 and California Supreme Court Case No. S226223. (Dkt. 1 at 2-3.) The dockets for
those cases reflect that both involved habeas requests.
Although Petitioner states that Case No. B250867 was decided on March 2, 2015, online
records indicate that it was, in fact, filed on August 26, 2013 and resolved on September 11, 2013.
Petitioner also filed two other habeas cases with the California Court of Appeal, which were
assigned Case Nos. B252581 and B262282. Petitioner filed those cases on November 20, 2013
and March 2, 2015, respectively, and they were decided on December 12, 2013 and March 4, 2015.
Thereafter, Petitioner’s California Supreme Court habeas request, filed on May 4, 2015, was
denied on July 15, 2015, with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998) (addressing
habeas timeliness bar). Petitioner asserts that he did not receive that denial. (Dkt. 1 at 3.)
In addition to these cases, it also appears from Petitioner’s criminal docket in Los Angeles
County Superior Court Case No. SA073868 that Petitioner sought habeas relief on or around
August 1, 2013, October 6, 2014, and October 8, 2015 in that court. Based on the superior court’s
docket, the last of these requests was adjudicated no later than December 8, 2015.
II.

TIMELINESS.
This action is subject to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that AEDPA applies to cases
filed after its effective date of April 24, 1996). AEDPA provides as follows:
(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
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) 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; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:17-cv-07233-VAP-KES

Date: October 5, 2017
Page 3

(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d). Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to
file a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). The
statute of limitations period generally runs from “the date on which the judgment 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)(A).
The record does not reflect that Petitioner took a direct appeal to the California Court of
Appeal following his 2010 sentencing (which is consistent with a nolo contendere plea). (See
Dkt. 1 at 2 (citing habeas Case No. B250867).) If not, then Petitioner’s judgment became final for
AEDPA purposes 60 days after judgment, or in early July 2010. See Cal. R. Ct. 8.308(a) (“a notice
of appeal … must be filed within 60 days after the rendition of the judgment ….”); Mendoza v.
Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (where Petitioner did not appeal, “his conviction
became final … 60 days after the judgment of conviction”). AEDPA’s one-year limitation period
thus expired in July 2011. Petitioner began filing state habeas petitions in August 2013, over two
years later.2 Petitioner is not entitled to statutory tolling for the pendency of these petitions because
he did not initiate them during the AEDPA limitations period. As a result, the Petition is facially
untimely.
Moreover, even if the AEDPA statute of limitations was deemed tolled during the
pendency of Petitioner’s state court habeas proceedings, those proceedings concluded no later than
December 2015, nearly two years before the filing of the Petition and outside of AEDPA’s one
year limitations period. Petitioner asserts that he did not receive notice of the California Supreme
Court’s July 2015 denial of the habeas request that he filed with that court. A prisoner’s delay in
receiving legal notices can give rise to equitable tolling. See Fue v. Biter, 842 F.3d 650, 656 (9th
Cir. 2016). But to be entitled to such tolling, a petitioner must show “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). The Ninth Circuit has concluded in at least two cases that fourteen and
twenty-one month delays are “not an unusually long time to wait for a court’s decision.” Fue, 842
F.3d at 654; Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001). In those cases, however, the
prisoners made some effort to follow-up to inquire about the status of their cases. Fue, 842 F.3d
at 653 (letter to court clerk after fourteen months); Huizar, 273 F.3d at 1224 (“steady stream of
correspondence”). Here, Petitioner makes no showing that he “diligently” pursued his habeas
request with the California Supreme Court after experiencing a twenty-eight month delay. Thus,
the Petition appears untimely.

2

As noted above, in denying Petitioner’s May 2015 petition over two years ago, the
California Supreme Court cited case law indicating that it had not been brought in a timely manner.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:17-cv-07233-VAP-KES

III.

Date: October 5, 2017
Page 4

CLAIMS NOT FEDERALLY COGNIZABLE.

Further, the Petition is grounded on the assertion that the “superior court violated
[Petitioner’s] rights under [California Penal Code §] 654.” (Dkt. 1 at 3.) That law provides as
follows:
An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished under
more than one provision. An acquittal or conviction and sentence under any one
bars a prosecution for the same act or omission under any other.
Cal. Pen. Code § 654(a).
The relevant habeas statute, 28 U.S.C. § 2254, authorizes the federal courts to grant habeas
corpus relief only for violations of federal law. 28 U.S.C. § 2254(a). As a result, Petitioner’s
alleged violation of state law does not give rise to a cognizable basis for relief. This provides an
additional ground for dismissal. See Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989)
(alleged violation of § 654 is state law claim not cognizable in federal habeas proceeding).3
IV.

ORDER.
Based on the above, this action appears subject to dismissal under Rule 4, which provides
that a judge must “promptly examine” a habeas petition and “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition….” Petitioner is therefore ordered to show cause why this action
should not be dismissed by filing a written response on or before November 3, 2017.
Instead of filing a response to this Order, Petitioner alternatively may request a voluntary
dismissal of this action pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The Clerk
of Court will attach a Notice of Dismissal form. The Court warns that dismissed claims, if later
re-filed, may be subject to the statute of limitations under 28 U.S.C. § 2244(d)(1) quoted above.
Petitioner has also failed to pay the $5.00 filing fee or submit a request to proceed IFP in
this action. If Petitioner chooses not to voluntarily dismiss his Petition, he shall either pay the
filing fee or submit a request to proceed IFP on or before November 3, 2017. The Clerk of Court
will attach an IFP request form to this order.
3

While it is possible—assuming that the Petition is shown to be timely—that Petitioner
could raise a claim under the Fifth Amendment’s Double Jeopardy Clause, the Court similarly has
doubts about whether such a claim would be viable. See Powell v. Grounds, 10-cv-111-GW-FFM,
2012 U.S. Dist. LEXIS 187781, at *40 (C.D. Cal. Sep. 18, 2012) (“[T]he Double Jeopardy Clause
is not implicated because robbery and burglary are not the same offense.”).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:17-cv-07233-VAP-KES

Date: October 5, 2017
Page 5

The Court warns Petitioner that failure to timely file a response to this Order will result in
the Court dismissing this action based upon lack of subject matter jurisdiction and untimeliness.
See Fed. R. Civ. P. 41(b).

Initials of Deputy Clerk JD