Johnnie Lee Barnes v. People of The State of California

Filing 3

MINUTE ORDER (IN CHAMBERS) ORDER TO SHOW CAUSE RE: TIMELINESS by Magistrate Judge Steve Kim. Petitioner is ORDERED TO SHOW CAUSE on or before April 10, 2017 why this action should not be dismissed as untimely. In any response, Petitioner should state the date that he filed his first state habeas petition in the California Superior Court and provide detailed reasons for any additional tolling not already considered that Petitioner believes is available. (Attachments: # 1 CV-09) (mkr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:17-CV-00421-SVW (SK)

Title

Johnnie Lee Barnes v. People of the State of California

Present: The Honorable

Date

March 9, 2017

Steve Kim, U.S. Magistrate Judge

Marc Krause

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: TIMELINESS

On February 26, 2017, Petitioner constructively filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254. (ECF No. 1). Petitioner alleges that he was convicted of multiple
counts of robbery with gun enhancements in February 2010. A review of the California courts’
dockets shows that Petitioner appealed his conviction to the California Court of Appeal, which
reversed the conviction in part in February 2012. (Cal. Ct. App. E050704). On a subsequent
appeal, the Court of Appeal affirmed his conviction in full in November 2013 (Cal. Ct. App.
E056547), and the California Supreme Court denied his petition for review in January 2014
(Cal. S. Ct. S215182). Thus, the conviction became final 90 days later in April 2014, at the
expiration of the time in which Petitioner could seek review in the United States Supreme
Court. From this date, Petitioner had one year until April 2015 in which to file a federal habeas
petition, absent tolling. See 28 U.S.C. § 2244 (d)(1)(A) (federal habeas petitioner must file
petition within one year of “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review”). Under the presumptive
one-year deadline, therefore, the Petition is untimely by almost two years.
The one-year limitations period may be tolled during the pendency of “a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment.” 28 U.S.C. § 2244(d)(2). Here, Petitioner filed successive state habeas petitions in
the California courts, though he does not state when he initiated this process by filing a petition
in the Superior Court. He alleges that the Superior Court denied the petition in April 2016 and
the Court of Appeal denied the petition in May 2016 (Cal. Ct. App. E066015). Petitioner waited
until November 2016 to file a petition in the California Supreme Court, which was denied in
February 2017. (Cal. S. Ct. S238424). Even with a generous construction of statutory tolling,
the Petition still appears untimely for two reasons.
First, while it is unclear when Petitioner initiated state habeas proceedings in the
California Superior Court, it is most likely that he did so well after April 2015, which was
otherwise the deadline by which he could file a federal habeas petition. If that is correct,
Petitioner’s state habeas proceedings would have had no statutory tolling effect. See Ferguson
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:17-CV-00421-SVW (SK)

Title

Date

March 9, 2017

Johnnie Lee Barnes v. People of the State of California

v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“the one-year habeas statute of limitations
did not permit the reinitiation of the limitations period where that period ended before
petitioner’s state petition for postconviction relief was filed”). Second, even if Petitioner
commenced state habeas proceedings before April 2015, the amount of delay in initiating those
proceedings after his conviction became final in April 2014 combined with the time between
the California Court of Appeal’s denial of his habeas petition in May 2016 and when he filed his
next petition to the California Supreme Court six months later in November 2016, which time
would not be tolled since no properly-filed state petition was pending, would ultimately exceed
the one-year limitations period in any case.
Accordingly, Petitioner is ORDERED TO SHOW CAUSE on or before April 10,
2017 why this action should not be dismissed as untimely. In any response, Petitioner should
state the date that he filed his first state habeas petition in the California Superior Court and
provide detailed reasons for any additional tolling not already considered that Petitioner
believes is available. See 28 U.S.C. § 2244(d)(1). If Petitioner does not file a timely
response to this Order to Show Cause, Petitioner is advised that the Court will
recommend dismissal of the Petition for failure to prosecute. See Fed. R. Civ. P
41(b); L.R. 41-1. If Petitioner no longer wishes to pursue this action, he may voluntarily
dismiss the action pursuant to Federal Rule of Civil Procedure 41(a) by filing a “Notice of
Dismissal.”

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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