Rene Cazares v. J. Pickett
Filing
3
(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL by Magistrate Judge Karen L. Stevenson.Petitioner is ORDERED TO SHOW CAUSE on or before November 13, 2020 why the Petition should not be dismissed. (see document for further details) (Attachments: #1 Blank State Habeas Petition Form, #2 Blank Notice of Dismissal Form) (hr)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 20-9193-DSF (KS)
Title
Rene Cazares v. J. Pickett
Present: The Honorable:
Date: October 14, 2020
Karen L. Stevenson, United States Magistrate Judge
Gay Roberson
Deputy Clerk
N/A
Court Reporter / Recorder
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
On October 6, 2020, Petitioner, a California state prisoner proceeding pro se, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1 (the “Petition”).)
According to the Petition, Petitioner is challenging a 1994 conviction and sentence for seconddegree robbery and related offenses. (See id. at 1, 16.)1 Petitioner was sentenced to a prison term
of five years and eight months. (Id. at 1) On October 27, 1995, Petitioner’s judgment of conviction
was affirmed on direct appeal. (Id. at 2, 49.) He did not appeal the affirmance of his conviction to
the California Supreme Court. (Id.) In 1999, Petitioner was convicted of battery on a non-prisoner
and possession of a deadly weapon by a prisoner, and was sentenced to a prison term of 25 years
to life. (Petition at 17, 76.) Petitioner is currently incarcerated pursuant to his 1999 offenses, but
he makes clear in the Petition that he is challenging his 1994 conviction and sentence.2 (Id. at 17.)
More than 16 years after his 1994 conviction became final, Petitioner filed a petition for
writ of habeas corpus in the Los Angeles County Superior Court, which was denied on December
4, 2012. (Id. at 51-52.) Petitioner filed another petition for writ of habeas corpus in the Los
Angeles County Superior Court, which was denied on December 2, 2014. (Id. at 77.) Neither of
those petitions raised any of the grounds asserted in the instant Petition. (Id.)
//
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1
For ease of reference, the Court cites to the page numbers assigned by the Court’s Electronic Case Filing
System.
2
“Although petitioners must be in ‘custody pursuant to a state court judgment’ in order to bring a habeas
petition under § 2254, they are not limited to challenging the specific judgment of conviction and sentence that resulted
in their state custody.” Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012) (citation omitted).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 20-9193-DSF (KS)
Title
Date: October 14, 2020
Rene Cazares v. J. Pickett
In 2018, more than 22 years after his 1994 conviction became final, Petitioner filed a
petition for writ of habeas corpus in the Los Angeles County Superior Court, which was denied in
January 2019. (Id. at 3-4, 75-85 (Case No. S255198).) The Superior Court held that the petition
was procedurally barred, as it did not allege with specificity with Petitioner did not raise the issues
in the petition until 2018; Petitioner raised claims that could have been, but were not, raised upon
a timely appeal from a judgment of conviction; and the Petition failed on the merits. (Id. at 77.)
In February 2019, Petitioner filed a petition for writ of habeas corpus, raising the same grounds
for relief, in the California Court of Appeal, which was denied in March 2019. (Id. at 4, 89-90.)
And in July 2019, the Supreme Court of California denied the same petition. (Id. at 4-5, 91.)
The instant Petition asserts five grounds for relief (the same grounds he raised in his 2018
state habeas petition): (1) the trial court lacked subject matter jurisdiction; (2) the trial court
imposed a sentencing pursuant to the “wrong statute”; (3) Petitioner’s conviction infringed on his
right to fair notice in violation of the Sixth and Fourteenth Amendments; (4) ineffective assistance
of trial counsel; and (5) ineffective assistance of appellate counsel. (Petition at 19-36.)
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254 (“Habeas Rules”), requires the Court to dismiss a petition without ordering a
responsive pleading where “it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress’s intent for the district courts to
take an active role in summarily disposing of facially defective habeas petitions. Boyd v.
Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). However, a district court’s use of this summary
dismissal power is not without limits. Id. at 1128. To the contrary, a habeas court must give a
petitioner notice of the defect and the consequences for failing to correct it as well as an
opportunity to respond to the argument for dismissal. Id. Accordingly, this Order is intended to
give Petitioner notice that the Petition is subject to dismissal because it is facially untimely.
To discharge this Order and avoid dismissal, Petitioner, no later than November 13, 2020,
must file a First Amended Petition that corrects the defects discussed below.
A. Applicable Statute of Limitations for Petitioner’s Claims
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs
this action, establishes a one-year statute of limitations for state prisoners to file a federal habeas
petition. 28 U.S.C. § 2244(d)(1). The “statutory purpose” of the one-year limitations period is to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 20-9193-DSF (KS)
Title
Date: October 14, 2020
Rene Cazares v. J. Pickett
“encourag[e] prompt filings in federal court in order to protect the federal system from being
forced to hear stale claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). The one-year limitations
period is subject to a statutory tolling provision, which suspends it for the time during which a
“properly-filed” application for post-conviction or other collateral review is “pending” in state
court. 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001).
Additionally, in certain “extraordinary circumstances” beyond a prisoner’s control, equitable
tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 U.S.
631, 645, 649 (2010).
The Section 2244(d)(1) limitations period is triggered and begins to run from the latest of:
(A) the date on which the underlying judgment became final through either the
conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created
by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable
constitutional right was first recognized by the United States Supreme Court; or
(D) the date on which the factual predicate underlying a claim could have been
discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).
In most instances, a state prisoner’s limitations period will be governed by Section
2244(d)(1)(A), see Dodd v. United States, 545 U.S. 353, 357 (2005), and Petitioner has not
proposed an alternative commencement date under Section 2244(d)(1).
B. Petitioner’s Claims Appear to Be Untimely
According to the Petition, Petitioner was convicted in 1994 and his judgment of conviction
was affirmed on October 27, 1995. Petitioner did appeal to the California Supreme Court or file a
state habeas petition challenging his conviction until 2012. Therefore, based on this timeline,
Petitioner’s 1994 conviction became final on December 6, 1995, 40 days after the order affirming
his judgment of conviction was filed without Petitioner seeking review from the California
Supreme Court. See Cal. R. Ct. 8.366(b)(1) (providing that Court of Appeal decision becomes
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 20-9193-DSF (KS)
Title
Date: October 14, 2020
Rene Cazares v. J. Pickett
final 30 days after filing); Cal. R. Ct. 8.500(e)(1) (providing that petition for review must be served
and filed within 10 days of Court of Appeal decision becoming final). Therefore, absent tolling,
Petitioner was required to file his federal habeas petition no later than December 5, 1996, i.e.,
within one year after his judgment of conviction becoming final. A habeas petitioner may be
entitled to gap tolling of the limitations period during the pendency of collateral proceedings in
state court, but here, Petitioner did not seek collateral review until more than 16 years after the
AEDPA statute of limitations had expired. When, as here, a petitioner waits to initiate his state
habeas proceedings until after the federal statute of limitations has lapsed, statutory tolling is not
available. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (“Because [the petitioner]
did not file his first state petition until after his eligibility for federal habeas had already lapsed,
statutory tolling cannot save his claim.”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended
before the state petition was filed.”).
The Petition also does not suggest that Petitioner that is entitled to equitable tolling.
Petitioner has not alleged any extraordinary circumstances that prevented him from timely filing
this action nor established diligence in pursuing his rights since the conclusion of direct review.
See Holland, 560 U.S. at 645 (a habeas petitioner is entitled to equitable tolling only if he shows
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing”) (emphasis added) (internal quotation marks and
citation omitted). Petitioner states that is a layperson without legal knowledge. (Petition at 6.)
However, that circumstance is commonplace among pro se prisoner litigants and does not
constitute an extraordinary circumstance justifying tolling.
Accordingly, the Petition is facially untimely and subject to dismissal.
Nevertheless, in the interests of justice, Petitioner is ORDERED TO SHOW CAUSE on
or before November 13, 2020 why the Petition should not be dismissed – that is, Petitioner
must file, no later than November 13, 2020, a First Amended Petition For Writ Of Habeas Corpus
that establishes that the petition is timely, i.e., that Petitioner is entitled to an alternative
commencement date and/or to sufficient statutory tolling (for habeas petitions filed in the state
court) and/or equitable tolling (for extraordinary circumstances beyond his control that made it
impossible for him to commence this action within the required time) to render the petition filed
within one year of the date his conviction became final.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
CV 20-9193-DSF (KS)
Title
Date: October 14, 2020
Rene Cazares v. J. Pickett
Petitioner’s failure to timely show cause for proceeding with this action will result in
the Court recommending dismissal pursuant to Rule 4 of the Habeas Rules, Local Rule 411, and Rule 41 of the Federal Rules of Civil Procedure.
If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss it by filing
a signed document entitled “Notice Of Voluntary Dismissal” in accordance with Federal Rule of
Civil Procedure 41(a)(1).
The Clerk is directed to send Petitioner a copy of the Central District’s form habeas petition
and a copy of the Central District’s form Notice of Voluntary Dismissal.
IT IS SO ORDERED.
:
Initials of Preparer
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