Victor Tovar v. R. Rackley
MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY AND/OR DUE TO FAILURE TO EXHAUST by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 11/16/2017. (SEE ORDER FOR DETAILS) (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 17-8286-JGB (KK)
Date: November 17, 2017
Title: Victor Tovar v. R. Rackley
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Petitioner:
Attorney(s) Present for Respondent:
(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed As Untimely and/or Due to Failure to Exhaust
On August 31, 2017, Victor Tovar (“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 determination regarding whether the federal Petition should be dismissed, however, without
giving Petitioner an opportunity to address these issues.
On November 12, 2010, following a jury trial in California Superior Court for the County
of Santa Barbara, Petitioner was convicted of two counts of kidnapping to commit robbery in
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).
The Court refers to the pages of the Petition as they are consecutively numbered by the
Court’s electronic docketing system.
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violation of Section 209(b)(1) of the California Penal Code, and one count of second degree
robbery in violation of Section 211 of the California Penal Code. See Pet. at 1; see also People v.
Tovar, No. B228953, 2012 WL 1201068, at *1 (Cal. Ct. App. Apr. 10, 2012).3 Petitioner was
sentenced to two-concurrent life terms for kidnapping to commit robbery, plus a consecutive
three-year term for robbery. Tovar, 2012 WL 1201068, at *1.
Petitioner filed a direct appeal on November 22, 2010 in the California Court of Appeal.
See California Courts, Appellate Courts Case Information, Docket,
no=B228953 (last updated Nov. 15, 2017, 12:45 PM). On April 10, 2012, the California Court of
Appeal stayed the three-year consecutive sentence on robbery, but otherwise affirmed
Petitioner’s conviction. Id.; see Pet. at 2; Tovar, 2012 WL 1201068, at *1, *8.
Petitioner did not file a petition for review in the California Supreme Court. On June 12,
2012, Petitioner wrote a letter to the California Supreme Court “inquir[ing]” about his case. Pet.
at 21, 31. On June 25, 2012, the California Supreme Court replied to Petitioner’s letter informing
Petitioner that after the California Court of Appeal affirmed his conviction on April 10, 2012, the
California Supreme Court “lost jurisdiction to act on any petition for review on June 9, 2012.”4
Id. at 31.
On May 24, 2017, Petitioner filed a petition for relief from default in the California
Supreme Court. Pet. at 3. On May 24, 2017, the California Supreme Court denied the petition
and informed Petitioner that the California Supreme Court “lost jurisdiction to act on any
petition for review June 11, 2012.” Id. at 3, 47.
On August 31, 2017, Petitioner constructively filed the instant Petition. Dkt. 1.
THE PETITION IS UNTIMELY AND IS SUBJECT TO DISMISSAL
THE PETITION WAS FILED AFTER AEDPA’S ONE-YEAR
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
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).
June 9, 2012 is a Saturday, and pursuant to California Rules of Court 1.10, weekends or
legal holidays are excluded in computing time. Accordingly, the correct date is Monday, June 11,
2012, which is later referenced in the May 24, 2017 letter from the California Supreme Court.
Pet. at 47.
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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
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
April 10, 2012. Petitioner concedes he did not file a petition for review of the Court of Appeal
decision with the California Supreme Court. Pet. 2. A search of the California Courts website
confirms no filings by any person with Petitioner’s name petitioned for review with the California
Hence, Petitioner’s conviction became final on May 20, 2012, forty days after the
California Court of Appeal issued its decision denying Petitioner’s direct appeal on April 10,
2012. See Brown, 303 F. App’x at 459. AEDPA’s one-year limitations period commenced the
next day, May 21, 2012, and expired on May 21, 2013. See 28 U.S.C. § 2244(d)(1). However,
Petitioner did not file the instant Petition until August 31, 2017. Dkt. 1. Therefore, the Court
deems the instant Petition untimely by over four years and three months, in the absence of any
STATUTORY TOLLING DOES NOT RENDER THE PETITION
“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). 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 did not file any state habeas petitions. Pet. at 6-7, 9. Therefore,
statutory tolling does not render the Petition timely.
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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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,
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
Here, Petitioner claims he “has suffered extreme prejudice as a result of appellate
counsel’s failure to exhaust the issue.” Pet. at 22. Plaintiff alleges his appellate counsel
“arbitrarily refused to file a petition for review to complete the exhaust-process” and “on his
own accord refused to file a petition for review to the state’s highest court.” Id. at 5, 7, 9, 21.
Petitioner states he “exercise[ed] due diligence” because as a “lay-man and ignorant to law,” he
“inquired by personally writing the California Supreme Court, and on June 25, 2012 the same
court replied by stating that the court lost jurisdiction over the case on June 9, 2012.” Id. at 20.
Petitioner writes, “[m]oreover, [P]etitioner on May 21, 2017 petitioned the same court seeking
‘Relief from Default’ to file a petition for review under constructive filing to satisfy AEDPA –
requisite to exhaust” before “the court clerk replied with a letter [on May 24, 2017] stating again
that the aforementioned court lost jurisdiction on June 11, 2012.” Id.
However, even assuming Petitioner was entitled to equitable tolling because his appellate
counsel failed to file a petition for review, appellate counsel advised Petitioner, in a letter dated
April 14, 2012, that he would not be filing a petition for review on Petitioner’s behalf. Id. at 42.
The letter further provided Petitioner with detailed instructions regarding “actions [Petitioner]
c[ould] take on [his] own,” including filing a petition for review in the California Supreme Court
within 40 days of the Court of Appeal’s decision. Id. at 42-43. Furthermore, after Petitioner was
informed by the California Supreme Court on June 25, 2012 that it lacked jurisdiction, Petitioner
did not file his petition for relief from default to the California Supreme Court until May 24,
2017, and Petitioner did not file the instant Petition until August 31, 2017. Hence, even assuming
Petitioner is entitled to some equitable tolling, Petitioner does not provide any justification for his
failure to take any action for almost five years (i.e. from June 25, 2012 to May 24, 2017). Thus,
equitable tolling does not render the Petition timely. Bills, 628 F.3d at 1097.
THE PETITION IS A WHOLLY UNEXHAUSTED PETITION SUBJECT TO
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
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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 three grounds for relief in his Petition: (1) Violations of
“Due Process” under the Fifth, Sixth, and Fourteenth Amendments by being “[d]enied the right
to a fair trial” (“Claim One”); (2) “Prejudice – Brady Violation” (“Claim Two”); and (3)
“Prejudice – Massiah Violation (Sixth Amend.)” (“Claim Three”). Pet. at 5-8. Petitioner,
however, concedes he has not raised any of his grounds for relief to the California Supreme
Court. Id. at 6-7, 9. 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.
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 December 16, 2017. 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
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
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
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Cause. Petitioner should attach to his response copies of any documents establishing
that Claims One, Two, and Three are indeed exhausted.
Option 2 - Petitioner May Request a Rhines Stay: Under Rhines v. Weber, 544
U.S. 269, 125 S. Ct. 1528, 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 must 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
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 with prejudice as untimely and/or
without prejudice for his failure to exhaust state remedies, 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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