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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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CARLOS ESCAMILLA,

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Petitioner,

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v.
RALPH DIAZ, Secretary CDCR, et al.,

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Respondents.

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No. CV 21-1851-CJC (PLA)
ORDER DISMISSING PETITION

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I.

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BACKGROUND

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Carlos Escamilla (“petitioner”) initiated this action on February 26, 2021, by filing a Petition

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for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”).

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Petitioner is currently serving a sentence of life without parole pursuant to his conviction in 1993

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in the Los Angeles County Superior Court for first degree murder (Cal. Penal Code § 187). (ECF

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No. 1 at 21). The Petition challenges petitioner’s 1993 conviction on the ground that his current

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For ease of reference, the Court refers to the ECF-generated page numbers when citing
to the Petition.

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confinement is unlawful because the murder charge was brought via a felony complaint, and not

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pursuant to a grand jury indictment. (Id. at 5, 11-15).

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On March 3, 2021, the Magistrate Judge ordered petitioner to show cause why the Petition

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should not be dismissed as time barred, and/or for failure to state a cognizable claim. (ECF No.

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4). On March 22, 2021, petitioner filed a Response to Order to Show Cause, in which he again

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asserts that he is entitled to habeas relief because was deprived of his constitutional right to be

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charged via a grand jury indictment. (ECF No. 5).

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II.

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DISCUSSION

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The Court has reviewed the Petition, the Magistrate Judge’s Order to Show Cause, and

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petitioner’s Response, and concludes that the Petition should be dismissed as untimely and for

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failure to state a cognizable claim.

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A.

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The Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”) one-year statute of limitations period, as set forth under 28 U.S.C. § 2244(d). See

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Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997).2 In most cases, the

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limitation period begins to run from “the date on which the judgment became final by conclusion

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of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

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Here, because petitioner’s 1993 conviction became final prior to the AEDPA’s enactment in 1996,

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the statute of limitations ran from April 25, 1996 (the day after the AEDPA was enacted) to April

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24, 1997. See Malcolm v. Payne, 281 F.3d 951, 955 (9th Cir. 2002).

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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.

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Beeler was overruled on other grounds in Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530,
540 (9th Cir. 1998) (en banc).
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This one-year limitation period is “statutorily tolled” while a “properly filed application for

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State post-conviction or other collateral review with respect to the pertinent judgment or claim is

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pending.” 28 U.S.C. § 2244(d)(2). This provision tolls the statute for the time during which a state

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prisoner is attempting, through proper use of state court procedures, to exhaust state court

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remedies with regard to his claims, through a particular post-conviction petition or application. The

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statute is not tolled between the time a final decision is issued on direct review and the time the

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first state collateral challenge is filed, because there is no case “pending” during that time. See

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Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).

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Here, there is no indication that statutory tolling applies. The state court habeas denials

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attached to the Petition show that petitioner sought state habeas relief in 2020 -- long after the

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one-year period ended. (See ECF No. 1 at 16-24). Accordingly, the recent state petitions do not

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trigger tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d)

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does not permit the reinitiation of the limitations period that has ended before the state petition was

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filed”).

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The Court next considers whether equitable tolling applies. In order to qualify, a petitioner

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must demonstrate (1) that he has been pursuing his rights diligently, and (2) that an “extraordinary

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circumstance” stood in his way that prevented him from timely filing. Holland v. Florida, 560 U.S.

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631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408,

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418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). The “extraordinary circumstance” requirement

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“suggests that an external force must cause the untimeliness, rather than . . . merely oversight,

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miscalculation or negligence on [the petitioner’s] part, all of which would preclude the application

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of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (internal

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quotation marks and citation omitted).

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extraordinary circumstances were the cause of his untimeliness, and that the extraordinary

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circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 998

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(9th Cir. 2009) (citations, internal quotations marks, and brackets omitted).

“The petitioner must additionally show that the

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Petitioner has presented nothing in the Petition or in his Response to the Order to Show

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Cause that indicates any extraordinary circumstance stood in his way that prevented him from
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filing the Petition at an earlier date. Moreover, the fact that the Petition was filed more than

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twenty-three years after the AEDPA deadline lapsed shows that he failed to exercise diligence in

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pursuing habeas relief. Accordingly, the Court determines that the Petition is barred by the one-

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year statute of limitations.

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B.

FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

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Next, petitioner’s sole claim in the Petition alleging his state criminal prosecution was

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unlawful because the charges were brought via a felony complaint, and not a grand jury

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indictment, does not present a federal question. James v. Reese, 546 F.2d 325, 327 (9th Cir.

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1976). A petitioner may seek federal habeas relief from a state court conviction or sentence if he

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is contending that he is in custody in violation of the Constitution or laws or treaties of the United

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States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L.

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Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed.

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2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally

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are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142

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(9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”).

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Petitioner’s claim is not cognizable in this habeas proceeding, as “[t]he grand jury

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requirement of the Fifth Amendment is not applicable to the states, and accordingly, prosecution

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via an information is not unconstitutional.” James, 546 F.2d at 327-28 (citation omitted); see also

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Caisse v. Mattheson, 2020 WL 5760284, at *2 (N.D. Cal. Sept. 28, 2020) (“There is no federal

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constitutional provision . . . requiring that a criminal defendant be informed of the nature and cause

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of the charges against him via a grand jury indictment[.]”). Likewise, to the extent petitioner

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asserts that the use of a felony complaint as the charging document violated California law, such

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a challenge only presents a state law issue, and thus does not state a claim for federal habeas

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relief. See McGuire, 502 U.S. at 68. Petitioner was advised in the Order to Show Cause that he

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had not presented a cognizable federal claim; his Response does nothing to alter this conclusion.

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III.

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CERTIFICATE OF APPEALABILITY

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A petitioner may not appeal a final order in a federal habeas corpus proceeding without first

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obtaining a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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A COA may issue “only if . . . [there is] a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2). A “substantial showing . . . includes showing that reasonable jurists could

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debate whether (or, for that matter, agree that) the petition should have been resolved in a

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different manner or that the issues presented were ‘adequate to deserve encouragement to

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proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542

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(2000) (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000).

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“When the district court denies a habeas petition on procedural grounds without reaching the

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prisoner’s underlying constitutional claim, a COA should issue when . . . jurists of reason would

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find it debatable whether the petition states a valid claim of the denial of a constitutional right and

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that jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Id. at 484.

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Here, petitioner has not made a substantial showing that he was deprived of a constitutional

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right. Furthermore, reasonable jurists would find that the Court correctly determined that the

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Petition should be dismissed as time barred and for failure to state a cognizable claim.

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Accordingly, a certificate of appealability is denied.

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IV.

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ORDER

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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

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April 1, 2021
DATED: _______________________

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_______________________________
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HONORABLE CORMAC J. CARNEY
CORMAC CARNEY
HONORABLE CO
O
AR
UNITED STATES DISTRICT JUDGE
STATES
TE
E
T JUDGE

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