Alasdair Murray McAulay v. State of California et al

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. Response to Order to Show Cause due by 8/22/2017. (nbo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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ALASDAIR MURRAY McAULAY, ) No. ED CV 17-01351-PSG (DFM)
Petitioner,

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v.

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STATE OF CALIFORNIA et al.

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Respondents.

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) ORDER TO SHOW CAUSE
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On June 19, 2017,1 Alasdair Murray McAulay (“Petitioner”)

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constructively filed pro se a Petition for Writ of Habeas Corpus by a Person in

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State Custody, challenging his June 24, 2014 conviction by guilty plea for elder

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Under the “mailbox rule,” a pro se prisoner’s habeas petition is
constructively filed when she gives it to prison authorities for mailing to the
court clerk. Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014); see
also Houston v. Lack, 487 U.S. 266, 276 (1988). Under this rule, a court
generally deems a habeas petition filed on the day it is signed, Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010), because it assumes that the
petitioner turned the petition over to prison authorities for mailing that day,
see Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam) (as
amended).
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abuse under circumstances likely to produce great bodily harm. Dkt. 1

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(“Petition”) at 2.2 The Petition raises five claims of ineffective assistance of

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trial counsel. Id. at 5-7. On July 17, 2017, Petitioner filed a “memorandum

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brief” in support of the Petition. Dkt. 4 (“Memorandum”).
For the reasons discussed below, it appears that Petitioner may no longer

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be in custody under his conviction and that the Petition is untimely. Petitioner

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is therefore ordered to show cause in writing by August 15, 2017, why the

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Petition should not be dismissed with prejudice.

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A.

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State-Court Proceedings
On June 24, 2014, Petitioner pleaded guilty to charges of elder abuse

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under circumstances likely to produce great bodily harm, and he was

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sentenced to three years in prison. Petition at 2. According to California’s

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Appellate Courts Case Information website, the trial court entered judgment

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on January 6, 2015. See Appellate Cts. Case Information, http://

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appellatecases.courtinfo.ca.gov/search.cfm?dist=42 (search for case no.

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E062851). Petitioner states that he did not appeal, Petition at 2, but the

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Appellate Courts Case Information website shows that on February 9, 2015, he

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lodged pro se a notice of appeal in the California Court of Appeal. See

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Appellate Cts. Case Information, http://appellatecases.courtinfo.ca.gov/

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search.cfm?dist=42 (search for case no. E062851). The court of appeal

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dismissed the appeal on its own motion on March 24, 2015, and a remittitur

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issued on May 27. Id. It does not appear that Petitioner filed a petition for

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review with the California Supreme Court.

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Meanwhile, on January 28, 2015, Petitioner filed a habeas petition in the
California Court of Appeal. See Appellate Cts. Case Information, http://

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Citations to Petitioner’s filings use the pagination provided by
CM/ECF.
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appellatecases.courtinfo.ca.gov/search.cfm?dist=42 (search for case no.

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E062758). The court denied the petition on February 4, 2015. Id. On February

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17, 2015, Petitioner filed a habeas petition in the California Supreme Court,

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which denied it on March 25. See Appellate Cts. Case Information,

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http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search for case no.

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S224473).
On April 4, 2016, Petitioner filed a habeas petition in the Riverside

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County Superior Court, which denied it on April 5. Petition at 3-4;

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Memorandum at 1. On June 10, 2016, Petitioner filed a petition for writ of

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mandate in the California Court of Appeal, which denied it on July 1.3 See

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Appellate Cts. Case Information, http://appellatecases.courtinfo.ca.gov/

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search.cfm?dist=42 (search for case no. E066163); Petition at 4. Petitioner

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states that he filed a habeas petition in the California Supreme Court on June

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10, 2017, and on an unspecified date he “received a no decision response to his

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petition.” Memorandum at 2.

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B.

Jurisdiction

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“The federal habeas statute gives United States district courts jurisdiction

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to entertain petitions for habeas relief only from persons who are ‘in custody in

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violation of the Constitution or laws or treaties of the United States.’” Maleng

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v. Cook, 490 U.S. 488, 490 (1989) (per curiam) (citation omitted, emphasis in

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original); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an

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application for a writ of habeas corpus in behalf of a person in custody

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In his Memorandum, Petitioner states that the appellate court denied
this petition on July 1, 2017, see Memorandum at 2, but in his federal Petition,
Petitioner states that it was denied on July 1, 2016, see Petition at 4, which
comports with the information available on the California Appellate Courts’
website, see Appellate Cts. Case Information, http://appellatecases.
courtinfo.ca.gov/search.cfm?dist=42 (search for case no. E066163).
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pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United

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States.”). The “in custody” requirement is jurisdictional, and it requires that

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the petitioner be in custody at the time the petition is filed. Bailey v. Hill, 599

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F.3d 976, 978-79 (9th Cir. 2010); see also Cook, 490 U.S. at 490-91 (“We have

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interpreted the statutory language as requiring that the habeas petitioner be ‘in

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custody’ under the conviction or sentence under attack at the time his petition

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is filed.”).

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Here, it appears Petitioner was no longer in jail or prison on June 19,

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2017, when he constructively filed his Petition, but that he was instead in the

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custody of U.S. Immigration and Customs Enforcement at the Hudson County

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Correctional Facility in New Jersey. See Petition at 10 (listing “Hudson

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County Correctional Center, (ICE detainee)” as place of detention on

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declaration in support of application to proceed in forma pauperis), 12 (listing

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“Hudson County Correctional Center” as return address on mailing envelope);

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see also Memorandum at 10 (listing “Hudson County Correctional Center” in

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signature line), 12 (listing “Hudson County Correctional Center” as return

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address on mailing envelope).4 The immigration consequences of a state-court

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conviction constitute collateral consequences and do not satisfy the in-custody

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requirement for purposes of determining whether subject-matter jurisdiction is

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lacking. Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir. 2005),

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abrogated on other grounds by Chaidez v. United States, 568 U.S. 342 (2013);

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Gomez v. Adelanto Det. Facility, No. 12-9417, 2013 WL 4500454, at *1-2

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(C.D. Cal. Aug. 21, 2013) (finding that petitioner whose state sentence had

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expired but who was in federal custody for being in country illegally did not

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Petitioner is apparently a native of Cameroon and was at some point
seeking lawful-permanent-resident status. See In re: Alasdair Murray
McAulay, No. A096 597 428, 2009 WL 952470 (B.I.A. Mar. 18, 2009).

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satisfy “in custody” requirement for purposes of federal habeas petition); Ali v.

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Clark, No. 10-846, 2010 WL 5559393, at *1, *3 (W.D. Wash. Dec. 16, 2010)

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(finding that petitioner who had completed state-court sentence and who was

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being held in immigration detention was not “in custody” for purposes of

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federal habeas petition), accepted by 2011 WL 66024 (W.D. Wash. Jan. 10,

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2011).
A parole or probation term is sufficient to satisfy the “in custody”

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jurisdictional requirement. Jones v. Cunningham, 371 U.S. 236, 243 (1963);

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Fowler v. Sacramento Cty. Sheriff’s Dep’t, 421 F.3d 1027, 1033 n.5 (9th Cir.

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2005). If Petitioner believes that he satisfies the “in custody” requirement by

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virtue of any parole or probation term, he should explain in his response to this

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Order whether he received such a term and when it expired or is set to expire.

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C.

Timeliness

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A district court has the authority to raise the statute of limitations issue

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sua sponte when untimeliness is obvious on the face of a petition, and it may

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summarily dismiss the petition on that ground under Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts, as long as

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the court gives the petitioner adequate notice and an opportunity to respond.

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Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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1.

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Under the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), a one-year limitation period applies to a federal petition for writ

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of habeas corpus filed by a person in state custody. See 28 U.S.C. § 2244(d)(1).

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In most cases, the limitation period begins running from “the date on which

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the judgment became final by the conclusion of direct review or the expiration

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

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Accrual Date

Assuming for the purposes of this Order that Petitioner’s pro se appeal
was timely and properly filed, his conviction became final 40 days after the
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court of appeal’s dismissal, when his time for seeking review in the California

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Supreme Court expired. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008)

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(finding that when petitioner did not petition California Supreme Court for

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review, his conviction became final 40 days after California Court of Appeal

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affirmed conviction); Cal. R. Ct. 8.366(b)(1) (court of appeal’s order dismissing

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appeal is final in 30 days); Cal. R. Ct. 8.500(e)(1) (petition for review due

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within 10 days of court of appeal’s decision becoming final). Because the court

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of appeal dismissed Petitioner’s appeal on March 24, 2015, his conviction

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became final on May 4, 2015.5 Under § 2244(d)(1)(A), the limitation period

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began running the following day, and it expired one year later, on May 4,

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2016. See Patterson v. Stewart, 251 F.3d 1243, 1246-47 (9th Cir. 2001).

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Petitioner does not appear to be entitled to a later trigger date under

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§ 2244(d)(1)(B), (C), or (D). He does not assert that he was impeded from filing

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his federal petition by unconstitutional state action. See § 2244(d)(1)(B). Nor

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are his claims based on a federal constitutional right that was newly recognized

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by the United States Supreme Court and made retroactively applicable to cases

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on collateral review. See § 2244(d)(1)(C). And it appears that Petitioner has

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been long aware of the underlying factual predicate of his claims, all of which

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relate to his attorney’s conduct during Petitioner’s criminal proceedings in the

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trial court and his alleged failure to appeal. See § 2244(d)(1)(D) (providing that

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limitation period may begin to run on “the date on which the factual predicate

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of the claim or claims presented could have been discovered through the

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exercise of due diligence”). And although Petitioner claims that he did not

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realize for “several months” that his counsel had “failed to file [an] appeal after

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[being] requested to do so,” Petition at 3, he certainly knew of his attorney’s

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The fortieth day was May 3, 2015, but because that day was a Sunday,
the deadline to file a petition for review was extended to Monday, May 4. See
Waldrip, 548 F.3d at 735 n.2.

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alleged failure by, at the latest, February 9, 2015, when Petitioner lodged an

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appeal pro se. As such, he is not entitled to a later trigger date under

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§ 2244(d)(1)(D). See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001)

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(holding that limitation period under § 2244(d)(1)(D) begins running when

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petitioner knew of facts underlying claims, not when he realized their “legal

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significance”).

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Thus, under § 2244(d)(1)(A), Petitioner had until May 4, 2016, to file his

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federal Petition. Because he did not constructively file the Petition until June

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19, 2017, it is untimely absent sufficient tolling.

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2.

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Under AEDPA, “[t]he time during which a properly filed application for

Statutory Tolling

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

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judgment or claim is pending shall not be counted toward any period of

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limitation under this subsection.” § 2244(d)(2). The entire period of time for a

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full round of collateral review, from the filing of a first state habeas petition to

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the time the last state habeas petition is denied, may be deemed “pending” and

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tolled, so long as the state petitioner proceeds from a lower state court to a

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higher one. See Carey v. Saffold, 536 U.S. 214, 222-23 (2002). This includes

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so-called “gap tolling” for the periods of time between such state habeas

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petitions, as long as that period is “reasonable.” Id. Periods of up to 60 days

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are generally presumptively reasonable. Cf. Evans v. Chavis, 546 U.S. 189, 201

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(2006) (holding unexplained six-month delay unreasonable compared to “short

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periods of time,” such as 30 to 60 days, “that most States provide for filing an

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appeal to the state supreme court” (alteration omitted)).

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As previously discussed, Petitioner’s limitation period began running on

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May 5, 2015. On April 4, 2016, Petitioner filed a habeas petition in Riverside

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County Superior Court, which denied it on April 5. Petition at 3-4;

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Memorandum at 1. Petitioner filed his next petition on June 10, 2016, and the
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California Court of Appeal denied it on July 1, 2016. See Appellate Cts. Case

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Information, http://appellatecases. courtinfo.ca.gov/search. cfm?dist=42

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(search for case no. E066163); Petition at 4. Assuming that Petitioner is

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entitled to statutory tolling for the entire 89-day period from April 4 to July 1,

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2016, the AEDPA limitation period was extended to August 1, 2016.

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Plaintiff states that he did not file his next state habeas petition until June

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10, 2017, nearly a year after the California Court of Appeal’s July 1, 2016

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denial. Memorandum at 2. That one-year period substantially exceeds the 30

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to 60 days the Supreme Court has identified as “reasonable” for gap tolling,

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and Petitioner has offered no explanation for the delay. He therefore is not

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entitled to gap tolling for that period. See Evans, 546 U.S. at 201 (refusing to

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apply tolling to unexplained six-month gap); see also Stewart v. Cate, 757 F.3d

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929, 935-37 (9th Cir. 2014) (as amended) (unexplained 100-day gap

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unreasonable). And because Petitioner filed that petition in June 2017, long

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after the limitation period expired on August 1, 2016, he is not entitled to any

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additional statutory tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

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Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations

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period that has ended before the state petition was filed.”).

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3.

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Federal habeas petitions are subject to equitable tolling of the one-year

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limitation period in appropriate cases. Holland v. Florida, 560 U.S. 631, 645

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(2010). To be entitled to equitable tolling, the petitioner must show both “(1)

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

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circumstance stood in his way” and prevented his timely filing. Id. at 649

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(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The petitioner must

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show that ‘the extraordinary circumstances were the cause of his untimeliness

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and that the extraordinary circumstances made it impossible to file a petition

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on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (quoting

Equitable Tolling

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold

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necessary to trigger equitable tolling [under AEDPA] is very high, lest the

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exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th

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Cir. 2002) (citation omitted, alteration in original). Equitable tolling will

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therefore be justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th

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Cir. 2003); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (2009)

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(“To apply the doctrine in ‘extraordinary circumstances’ necessarily suggests

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the doctrine’s rarity, and the requirement that extraordinary circumstances

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‘stood in his way’ suggests that an external force must cause the untimeliness,

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rather than, as we have said, merely ‘oversight, miscalculation or negligence

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

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equitable tolling.’” (citation omitted, alteration in original)). The petitioner

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bears the burden of demonstrating that AEDPA’s limitation period should be

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equitably tolled. See Pace, 544 U.S. at 418.
Petitioner does not contend that any extraordinary circumstance

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prevented him from filing a timely federal petition, nor does he allege any facts

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showing that he was reasonably diligent in pursuing his rights. As such, it does

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not appear that he is entitled to any equitable tolling.
Thus, the AEDPA limitation period expired on August 1, 2016. Because

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Petitioner did not constructively file his federal Petition until June 19, 2017, it

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is untimely by more than 10 months.

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D.

Conclusion
IT THEREFORE IS ORDERED that on or before August 22, 2017,

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Petitioner show cause in writing why the Court should not dismiss this action

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with prejudice for lack of jurisdiction and because it is untimely. Petitioner is

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expressly warned that his failure to timely respond to this Order may result in

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his Petition being dismissed for the reasons stated above and for failure to

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prosecute.

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Dated: July 25, 2017
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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