Jimmie L Carter v. Connie Gipson

Filing 5

ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE DISMISSED by Magistrate Judge Alicia G. Rosenberg. The court orders Petitioner to show cause, in writing, on or before March 8, 2024, why the court should not recommend dismissal of the Petition for Writ of Habeas Corpus as moot or barred by the statute of limitations. (see document for further details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JIMMIE L. CARTER,

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Petitioner,

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CONNIE GIPSON, CDCR Dir.,

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Respondent.

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NO. CV 22-4775-AB (AGR)

ORDER TO SHOW CAUSE WHY
PETITION FOR WRIT OF
HABEAS CORPUS SHOULD
NOT BE DISMISSED

Petitioner has filed a Petition for Writ of Habeas Corpus by a Person in
State Custody (“Petition”), pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.)1 The
Petition appears moot and barred by the statute of limitations.
Therefore, the court orders Petitioner to show cause in writing, on or before
March 8, 2024, why the court should not recommend dismissal of the Petition for
Writ of Habeas Corpus as moot or barred by the statute of limitations

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Page citations are to the page numbers generated by the CM/ECF
system in the header of the document.

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I.

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PROCEDURAL HISTORY

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The Court takes judicial notice of the records in Petitioner’s prior federal

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habeas corpus action in the Central District of California2 and the available state

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court records. See Fed. R. Evid. 201; Porter v. Ollison, 620 F.3d 952, 955 n.1

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(9th Cir. 2010) (taking judicial notice of state court docket).

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On November 9, 2011, a Los Angeles County Superior Court jury found

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Petitioner guilty of robbery (Cal. Penal Code § 211) and found true that the

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principal in the robbery was armed with a firearm (Cal. Penal Code

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§ 12022(a)(1)). (See People v. Carter, 2013 WL 98534, *1 (Cal. App. 2013);

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https://www.lacourt.org/criminalcasesummary (Case No. MA052761).) In a

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bench trial, the court determined that Petitioner previously suffered a 1998

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robbery conviction. (See Carter, 2013 WL 98534, *1.) On December 30, 2011,

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the trial court sentenced Petitioner to state prison for a total term of 17 years.

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(Id.) The California Court of Appeal affirmed in an unpublished opinion. People

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v. Carter, 2013 Cal. App. Unpub. LEXIS 164 (2013).

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On January 6, 2021, the Superior Court re-sentenced Petitioner to a total

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term of 16 years in state prison. (Petition at 2); (See

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https://www.lacourt.org/criminalcasesummary/ui/Selection.aspx (Case No.

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MA052761).) The Petition does not indicate that Petitioner appealed.

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Petitioner constructively filed the underlying Petition on July 6, 2022. (Dkt.

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No. 1 at 8, 20.) The Petition contains a single ground for relief challenging

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Petitioner’s sentence.

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Carter v. Grounds, CV 14-3238 RZ (C.D. Cal.) (“Carter I”). The District
Court denied the Petition for Writ of Habeas Corpus and denied a certificate of
appealability. (Dkt. No. 25-27.) The Ninth Circuit denied a certificate of
appealability. (Dkt. No. 35.)
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II.

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DISCUSSION

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The Petition was filed after enactment of the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Therefore, the court applies the AEDPA in

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reviewing the petition. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

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A.

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The Petition acknowledges that Petitioner was resentenced on January 6,

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Sentencing on January 6, 2021

2021 to 16 years in prison. (Petition, Dkt. No. 1 at 2.)
Nevertheless, the Petition contains only one ground for relief that

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challenges various aspects of the sentencing before a different judge on

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December 30, 2011. (Id. at 5.) Petitioner asks that the court remand his case

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for resentencing, which appears to have occurred already on January 6, 2021.

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(Id. at 17.)

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According to the Superior Court’s website,3 Petitioner was sentenced on

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January 6, 2021 to 16 years in prison. The 16-year term consists of the following

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components: (1) the upper term of 5 years for conviction after jury trial for second

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degree robbery; (2) doubled (5 + 5) for an aggregate of 10 years based on a prior

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1998 robbery conviction pursuant to Cal. Penal Code §§ 667(b)-(i) and

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1170.12(a)-(e); (3) a consecutive 1-year term pursuant to Cal. Penal Code §

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12022(a)(1); and (4) a consecutive 5-year term pursuant to Cal. Penal Code §

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667(a).

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The Petition does not challenge the January 6, 2021 sentencing and,
therefore, appears to be moot.

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B.

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The AEDPA contains a one-year statute of limitations for a petition for writ

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Timeliness

of habeas corpus filed in federal court by a person in custody pursuant to a

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See https://www.lacourt.org/criminalcasesummary (Case No. MA052761).
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judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts

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running on the latest of either the date when a conviction becomes final under 28

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U.S.C. § 2244(d)(1)(A) or on a date set in section 2244(d)(1)(B)-(D). The statute

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of limitations applies to each claim on an individual basis. See Mardesich v.

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Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

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The Date on Which Conviction Became Final

Under 28 U.S.C. § 2244(d)(1)(A), the limitations period runs from the date

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on which the judgment became final by the conclusion of direct review or the

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expiration of the time for seeking direct review.

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The Superior Court resentenced Petitioner on January 6, 2021. Petitioner’s

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conviction became final 60 days later – on March 8, 2021 – when the time for

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filing a notice of appeal expired. See People v. Alexander, 45 Cal. App. 5th 341,

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344-45 (2020); Cal. Rules of Court, Rule 8.308(a) (providing defendant has 60

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days to appeal). Absent tolling, the statute of limitations expired one year later on

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March 8, 2022.

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Petitioner constructively filed this Petition on July 6, 2022, approximately

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four months later. Accordingly, absent a showing that the accrual date was

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delayed or the limitations period was tolled, the Petition is untimely.

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2.

Delayed Accrual – § 2244(d)(1)(D)

Under § 2244(d)(1)(D), the limitations period starts running on “the date on

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which the factual predicate of the claim or claims presented could have been

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discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

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The “‘due diligence’ clock starts ticking when a person knows or through diligence

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could discover the vital facts, regardless of when their legal significance is

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actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012).

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Petitioner has not argued that he is entitled to a later start date than the

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date his conviction and sentence became final, and the court sees no basis for

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delayed accrual.
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Statutory Tolling

Generally, the statute of limitations is tolled during the time “a properly filed

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application for State post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Waldrip v.

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Hall, 548 F.3d 729, 734 (9th Cir. 2008). However, once the limitation period has

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expired, later-filed state habeas petitions do not toll the limitation period. See

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Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

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Petitioner did not file any state court habeas petition after the sentence
imposed on January 6, 2021 became final. (See

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https://appellatecases.courtinfo.ca.gov.) Accordingly, the Petition is untimely

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unless Petitioner can demonstrate that he is entitled to equitable tolling.

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4.

Equitable Tolling

A prisoner who files a federal habeas petition after expiration of the

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one-year statute of limitations may be entitled to equitable tolling. See Holland v.

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Florida, 560 U.S. 631, 649 (2010). The petitioner must show “‘(1) that he has

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been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way’ and prevented timely filing.” Id. (citation omitted). The diligence

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required for equitable tolling is “‘reasonable diligence’” and not maximum feasible

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diligence. Id. at 653 (citation omitted). To show an extraordinary circumstance, a

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petitioner must show more than garden variety attorney negligence. Id. at 652-53

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(noting that attorney abandonment may satisfy standard). The extraordinary

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circumstances must be the cause of the untimeliness. Bryant v. Ariz. Att’y Gen.,

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499 F.3d 1056, 1061 (9th Cir. 2010). “Indeed, the threshold necessary to trigger

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equitable tolling [under AEDPA] is very high, lest the exceptions swallow the

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rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation

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marks and citation omitted).

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Petitioner has not shown reasonable diligence in pursuing his rights or an
extraordinary circumstance that caused his untimeliness. Absent a basis for
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equitable tolling, the Petition remains untimely.
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Actual Innocence

Actual innocence “serves as a gateway through which a petitioner may

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pass” a statute of limitations impediment. McQuiggin v. Perkins, 569 U.S. 383,

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386 (2013). “[A] petitioner does not meet the threshold requirement unless he

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persuades the district court that, in light of the new evidence, no juror, acting

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reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.

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(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

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To be credible, Petitioner must support his claim of actual innocence with

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“new reliable evidence–whether it be exculpatory scientific evidence, trustworthy

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eyewitness accounts, or critical physical evidence–that was not presented at

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trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 324)

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(emphasis in original). Based on all the evidence, both old and new, "the court

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must make 'a probabilistic determination about what reasonable, properly

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instructed jurors would do.'" Id. at 538 (citation omitted). "The court's function is

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not to make an independent factual determination about what likely occurred, but

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rather to assess the likely impact of the evidence on reasonable jurors." Id.

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Petitioner attaches a declaration dated October 26, 2017 from Wayne

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Jones, Petitioner’s co-defendant before Jones entered a plea of nolo contendere.

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The declaration does not satisfy Petitioner’s burden.

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On direct appeal, the California Court of Appeal set forth the following facts:

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[¶] The evidence at trial established that

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[Petitioner] and Wayne Jones committed a robbery at

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Camacho Auto Sales in Lancaster on May 7, 2011. That

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day, [Petitioner], who had recently purchased a car from

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the business, came to the establishment to make a

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payment on his car. After he left, Jones entered, and

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pointing a gun at the receptionist, took between $800 and
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$1000. As the robbery took place, [Petitioner] circled the

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area in his car several times. After taking the money,

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Jones exited and entered the passenger side of

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[Petitioner’s] car which drove off. All of these events

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were videotaped.
[¶] Several days later, law enforcement arrested

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[Petitioner] and Jones in [Petitioner’s] car. The car was

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eventually taken to one of Camacho’s lots.

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Subsequently, two Camacho Auto Sales employees (a

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licensed recovery agent and a repossession agent)

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searched the car and found, hidden in the back of the

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passenger seat, the gun Jones had used in the robbery.

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Carter, 2013 Cal. App. Unpub. LEXIS 164, at *1-*2 (footnote omitted).

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The 2017 declaration from Jones is dated over six years after the robbery

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and over 4½ years before Petitioner constructively filed the Petition in this court.

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Mr. Jones declared that he committed robbery at Camacho Auto Sales on May 7,

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2011. He was not “influenced or coerced by anybody else.” He “acted alone in

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the matter” and Petitioner “was not involved in and did not participate in any way.”

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(Dkt. No. 1 at 19.)

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Petitioner has not shown that, in light of the old and new evidence, no

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reasonable juror would have voted to find him guilty beyond a reasonable doubt.

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Mr. Jones’ declaration is wholly conclusory and does not undermine the

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videotaped evidence of Petitioner driving around the business while Jones

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robbed it and of Jones getting into the passenger side of Petitioner’s car after

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leaving with the money. Nor does Mr. Jones’ declaration undermine the evidence

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that the gun used in the robbery was found hidden in Petitioner’s car. Rather,

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Jones’ declaration is consistent with the evidence that Jones was alone when he

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entered Camacho Auto Sales, pointed a gun at the receptionist, and took
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between $800 and $1000.

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III.

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ORDER

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The court orders Petitioner to show cause, in writing, on or before March 8,

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2024, why the court should not recommend dismissal of the Petition for Writ of

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Habeas Corpus as moot or barred by the statute of limitations. If Petitioner does

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not respond to this Order to Show Cause, the court will recommend that the

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District Court dismiss the Petition.

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DATED: February 5, 2024

ALICIA G. ROSENBERG
United States Magistrate Judge

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