Hector Ayala v. Brandon Price

Filing 7

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL by Magistrate Judge Karen L. Stevenson. Petitioner is ORDERED TO SHOW CAUSE on or before June 1, 2018 why the Petition should not be dismissed - that is, Petitioner must file, no later than June 1, 20 18, a First Amended Petition For Writ Of Habeas Corpus. If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss it by filing a signed document entitled "Notice Of Voluntary Dismissal". (see order for details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 17-cv-01249-MWF (KS)
Title

Date: May 1, 2018

Hector Ayala v. Brandon Price, Warden

Present: The Honorable:

Karen L. Stevenson, United States Magistrate Judge

Roxanne Horan-Walker
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 June 14, 2017, Petitioner, a California state prisoner proceeding pro se, 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.) According to the Petition, on July 16, 2003, Petitioner was
sentenced to 6 years in prison after he pleaded guilty to lewd and lascivious acts against a minor
under 14 years of age and failure to register as a sex offender (violations of California Penal
Code §§ 288a and190). (Petition at 2.) Petitioner did not appeal. (Petition at 3.)
On August 24, 2016, more than twelve years after his conviction became final, Petitioner
filed a petition for writ of habeas corpus in the San Bernardino County Superior Court (case no.
WJCKS1600139), which denied the petition as untimely on December 19, 2016. (Pet. at 3; and
see Exhibit 4 to Petition at Page ID 247 1.) On December 22, 2016, Petitioner sought collateral
review in the California Court of Appeal (case no. E067422), which summarily denied relief on
January 18, 2017. (Petition at 5; see also Attachment at Page ID 259.) Petitioner then pursued
habeas relief in the California Supreme Court (case no. S239810), which denied relief on April
12, 2017 without comment or citation to authority. (See Petition, Attachment at Page ID 287.)
The Petition presents two claims for relief: (1) Petitioner’s guilty plea was “misadvised”
and not knowingly and intelligently entered into because Petitioner alleges that he was not
advised by his trial counsel that he would be subject to potentially indefinite confinement under
the Sexually Violent Predator Act (“SVP Act”); and (2) Petitioner received ineffective assistance
of counsel in connection with Petitioner’s entering into the plea agreement because counsel
allegedly failed to advise Petitioner of the true consequences of his plea. (Pet. at 5-6.)
1

For ease of reference, the Court cites to the more than 200 pages of exhibits attached to the form petition
using the CM/ECF page identifiers.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 17-cv-01249-MWF (KS)
Title

Date: May 1, 2018

Hector Ayala v. Brandon Price, Warden

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.” The Court has identified a defect in the
Petition that suggests that it must be dismissed.
The Antiterrorism Effective Death Penalty Act of 1986 (“AEDPA”) imposes a one year
statute of limitations on claims challenging state court convictions or sentences. 28 U.S.C. §
2244(d)(1). The limitation period runs from the latest of -

(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which any impediment to filing an application created by State
action in violation of the Constitution or law of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if that right has been made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claims presented could have
been discovered through due diligence.

See 28 U.S.C. § 2244(d)(1). The limitation period is tolled during the time when a ”properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). This is commonly referred to as “gap
tolling.” See Carey v. Saffold, 536 U.S. 214 (2002).
Here, Petitioner’s conviction became final on October 14, 2003, i.e., 90 days after he was
convicted and sentenced on July 16, 2003. Therefore, absent tolling, Petitioner was required to
file his federal habeas petition no later than October 14, 2004, that is, within one year after his
sentence became 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 twelve years after the AEDPA statute of limitations had
expired. When, as here, a petitioner waits to initiate his state habeas proceedings until after the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 17-cv-01249-MWF (KS)
Title

Date: May 1, 2018

Hector Ayala v. Brandon Price, Warden

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) (“section 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 v. Florida, 560 U.S. 631, 645 (2010) (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).
Instead, Petitioner appears to argue that he is entitled to relief by pointing to changes to
the SVP Act under California law that now provide for an indeterminate term of incarceration.
On that basis, he argued in his state court habeas proceedings that the California Supreme
Court’s decision in People v. Moore, 69 Cal.App.4th 626 (1998) should “no longer be
controlling.” (See Petition, Exhibit 3 at Page ID 194 (Petition for Review to the California
Supreme Court).) But even if amendments to California’s SVP Act announced a new rule that
bears on Petitioner’s claims, Petitioner has not established that the United States Supreme Court
has announced any newly recognized right that “has been made retroactively applicable to cases
on collateral review” as required to establish an alternative commencement date under 28 U.S.C.
§ 2244(d)(1)(C). Thus, Petitioner does not demonstrate that 28 U.S.C. § 2244(d)(1)(C) is
applicable here. He also has not demonstrated extraordinary circumstances or diligence in
pursuing his claims in the intervening years between when his conviction became final and the
filing of this Petition.
Accordingly, the Petition must be dismissed as untimely.
Nevertheless, in the interests of justice, Petitioner is ORDERED TO SHOW CAUSE
on or before June 1, 2018 why the Petition should not be dismissed – that is, Petitioner must
file, no later than June 1, 2018, a First Amended Petition For Writ Of Habeas Corpus that:
includes specific factual allegations demonstrating that either the Petition is timely under 28

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Civil Minutes – General

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 17-cv-01249-MWF (KS)
Title

Date: May 1, 2018

Hector Ayala v. Brandon Price, Warden

U.S.C. § 2244(d)(1) or Petitioner has been diligently pursuing his rights but an extraordinary
circumstance prevented timely filing of the Petition.
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).

:
Initials of Preparer

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