Carlos Escamilla v. Gavin Newton et al
Filing
6
ORDER DISMISSING PETITION by Judge Cormac J. Carney. IT IS THEREFORE ORDERED that the Petition is dismissed with prejudice as time barred and for failure to state a cognizable claim. A certificate of appealability is also denied. Case Terminated. Made JS-6. (es)
JS-6
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
WESTERN DIVISION
11
12
CARLOS ESCAMILLA,
13
Petitioner,
14
15
v.
RALPH DIAZ, Secretary CDCR, et al.,
16
Respondents.
17
)
)
)
)
)
)
)
)
)
)
No. CV 21-1851-CJC (PLA)
ORDER DISMISSING PETITION
18
I.
19
BACKGROUND
20
Carlos Escamilla (“petitioner”) initiated this action on February 26, 2021, by filing a Petition
21
for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”).
22
Petitioner is currently serving a sentence of life without parole pursuant to his conviction in 1993
23
in the Los Angeles County Superior Court for first degree murder (Cal. Penal Code § 187). (ECF
24
No. 1 at 21). The Petition challenges petitioner’s 1993 conviction on the ground that his current
25
26
27
28
1
For ease of reference, the Court refers to the ECF-generated page numbers when citing
to the Petition.
1
confinement is unlawful because the murder charge was brought via a felony complaint, and not
2
pursuant to a grand jury indictment. (Id. at 5, 11-15).
3
On March 3, 2021, the Magistrate Judge ordered petitioner to show cause why the Petition
4
should not be dismissed as time barred, and/or for failure to state a cognizable claim. (ECF No.
5
4). On March 22, 2021, petitioner filed a Response to Order to Show Cause, in which he again
6
asserts that he is entitled to habeas relief because was deprived of his constitutional right to be
7
charged via a grand jury indictment. (ECF No. 5).
8
9
II.
10
DISCUSSION
11
The Court has reviewed the Petition, the Magistrate Judge’s Order to Show Cause, and
12
petitioner’s Response, and concludes that the Petition should be dismissed as untimely and for
13
failure to state a cognizable claim.
14
A.
15
The Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996
16
(“AEDPA”) one-year statute of limitations period, as set forth under 28 U.S.C. § 2244(d). See
17
Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997).2 In most cases, the
18
limitation period begins to run from “the date on which the judgment became final by conclusion
19
of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
20
Here, because petitioner’s 1993 conviction became final prior to the AEDPA’s enactment in 1996,
21
the statute of limitations ran from April 25, 1996 (the day after the AEDPA was enacted) to April
22
24, 1997. See Malcolm v. Payne, 281 F.3d 951, 955 (9th Cir. 2002).
23
24
STATUTE OF LIMITATIONS
The Petition was filed more than twenty-three years after the statute of limitations expired
in 1997. Absent sufficient statutory or equitable tolling, the present action is time barred.
25
26
27
28
2
Beeler was overruled on other grounds in Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530,
540 (9th Cir. 1998) (en banc).
2
1
This one-year limitation period is “statutorily tolled” while a “properly filed application for
2
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
3
pending.” 28 U.S.C. § 2244(d)(2). This provision tolls the statute for the time during which a state
4
prisoner is attempting, through proper use of state court procedures, to exhaust state court
5
remedies with regard to his claims, through a particular post-conviction petition or application. The
6
statute is not tolled between the time a final decision is issued on direct review and the time the
7
first state collateral challenge is filed, because there is no case “pending” during that time. See
8
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
9
Here, there is no indication that statutory tolling applies. The state court habeas denials
10
attached to the Petition show that petitioner sought state habeas relief in 2020 -- long after the
11
one-year period ended. (See ECF No. 1 at 16-24). Accordingly, the recent state petitions do not
12
trigger tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d)
13
does not permit the reinitiation of the limitations period that has ended before the state petition was
14
filed”).
15
The Court next considers whether equitable tolling applies. In order to qualify, a petitioner
16
must demonstrate (1) that he has been pursuing his rights diligently, and (2) that an “extraordinary
17
circumstance” stood in his way that prevented him from timely filing. Holland v. Florida, 560 U.S.
18
631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408,
19
418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). The “extraordinary circumstance” requirement
20
“suggests that an external force must cause the untimeliness, rather than . . . merely oversight,
21
miscalculation or negligence on [the petitioner’s] part, all of which would preclude the application
22
of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (internal
23
quotation marks and citation omitted).
24
extraordinary circumstances were the cause of his untimeliness, and that the extraordinary
25
circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 998
26
(9th Cir. 2009) (citations, internal quotations marks, and brackets omitted).
“The petitioner must additionally show that the
27
Petitioner has presented nothing in the Petition or in his Response to the Order to Show
28
Cause that indicates any extraordinary circumstance stood in his way that prevented him from
3
1
filing the Petition at an earlier date. Moreover, the fact that the Petition was filed more than
2
twenty-three years after the AEDPA deadline lapsed shows that he failed to exercise diligence in
3
pursuing habeas relief. Accordingly, the Court determines that the Petition is barred by the one-
4
year statute of limitations.
5
B.
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM
6
Next, petitioner’s sole claim in the Petition alleging his state criminal prosecution was
7
unlawful because the charges were brought via a felony complaint, and not a grand jury
8
indictment, does not present a federal question. James v. Reese, 546 F.2d 325, 327 (9th Cir.
9
1976). A petitioner may seek federal habeas relief from a state court conviction or sentence if he
10
is contending that he is in custody in violation of the Constitution or laws or treaties of the United
11
States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L.
12
Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed.
13
2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally
14
are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142
15
(9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”).
16
Petitioner’s claim is not cognizable in this habeas proceeding, as “[t]he grand jury
17
requirement of the Fifth Amendment is not applicable to the states, and accordingly, prosecution
18
via an information is not unconstitutional.” James, 546 F.2d at 327-28 (citation omitted); see also
19
Caisse v. Mattheson, 2020 WL 5760284, at *2 (N.D. Cal. Sept. 28, 2020) (“There is no federal
20
constitutional provision . . . requiring that a criminal defendant be informed of the nature and cause
21
of the charges against him via a grand jury indictment[.]”). Likewise, to the extent petitioner
22
asserts that the use of a felony complaint as the charging document violated California law, such
23
a challenge only presents a state law issue, and thus does not state a claim for federal habeas
24
relief. See McGuire, 502 U.S. at 68. Petitioner was advised in the Order to Show Cause that he
25
had not presented a cognizable federal claim; his Response does nothing to alter this conclusion.
26
/
27
/
28
/
4
1
III.
2
CERTIFICATE OF APPEALABILITY
3
A petitioner may not appeal a final order in a federal habeas corpus proceeding without first
4
obtaining a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
5
A COA may issue “only if . . . [there is] a substantial showing of the denial of a constitutional right.”
6
28 U.S.C. § 2253(c)(2). A “substantial showing . . . includes showing that reasonable jurists could
7
debate whether (or, for that matter, agree that) the petition should have been resolved in a
8
different manner or that the issues presented were ‘adequate to deserve encouragement to
9
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542
10
(2000) (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000).
11
“When the district court denies a habeas petition on procedural grounds without reaching the
12
prisoner’s underlying constitutional claim, a COA should issue when . . . jurists of reason would
13
find it debatable whether the petition states a valid claim of the denial of a constitutional right and
14
that jurists of reason would find it debatable whether the district court was correct in its procedural
15
ruling.” Id. at 484.
16
Here, petitioner has not made a substantial showing that he was deprived of a constitutional
17
right. Furthermore, reasonable jurists would find that the Court correctly determined that the
18
Petition should be dismissed as time barred and for failure to state a cognizable claim.
19
Accordingly, a certificate of appealability is denied.
20
/
21
/
22
/
23
/
24
/
25
/
26
/
27
/
28
/
5
1
IV.
2
ORDER
3
4
IT IS THEREFORE ORDERED that the Petition is dismissed with prejudice as time
barred and for failure to state a cognizable claim. A certificate of appealability is also denied.
denie
5
6
April 1, 2021
DATED: _______________________
__________________________________
_______________________________
_
_
__
__
_
HONORABLE CORMAC J. CARNEY
CORMAC CARNEY
HONORABLE CO
O
AR
UNITED STATES DISTRICT JUDGE
STATES
TE
E
T JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?