Griffin v. Martinez

Filing 33

INFORMATION ORDER; ORDER Extending the Deadline to Show Cause signed by Magistrate Judge Jeremy D. Peterson on 04/29/2020. Show Cause Response due within Thirty-Days. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEE GRIFFIN,

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Petitioner,
v.

ORDER EXTENDING THE DEADLINE TO
SHOW CAUSE

Respondent.
ECF No. 31

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RESPONSE DUE IN THIRTY DAYS

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INFORMATIONAL ORDER
ECF No. 32

JOEL D. MARTINEZ,

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Case No. 1:17-cv-01137-DAD-JDP

Petitioner Robert Lee Griffin, a state prisoner without counsel, seeks a writ of habeas

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corpus under 28 U.S.C. § 2254. ECF No. 30. On April 17, 2020, we issued an order to show

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cause why the amended petition should not be dismissed as untimely. ECF No. 31. In his

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response to our order to show cause, petitioner stated that he misunderstood the habeas

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requirements for timely filing. ECF No. 32. Accordingly, we provide petitioner with the

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following information and extend the deadline for him to show cause why his amended petition

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should not be dismissed as untimely.

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Discussion

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On June 25, 2018, we granted petitioner a stay of his petition under the Kelly procedure so

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that he could exhaust his state-level remedies and then return to federal court to file a fully

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exhausted amended petition. See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003); ECF
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No. 24. Petitioner did so. ECF No. 30. However, in our findings and recommendations to grant

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petitioner a stay, we warned petitioner that any newly-exhausted claims must be timely. See King

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v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009); ECF No. 17 at 3-4. Unlike filing an application

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for state habeas relief, filing a federal habeas claim does not toll AEDPA’s statute of limitations.

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See Duncan v. Walker, 533 U.S. 167, 181 (2001). To be timely, petitioner’s claims must either

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(1) meet AEDPA’s statute of limitations requirements, see 28 U.S.C. § 2244(d), or (2) “relate

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back” to claims contained in the original petition that were exhausted at the time of filing. See

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King, 564 F.3d at 1143; Mayle v. Felix, 545 U.S. 644, 664 (2005).

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In our order to show cause, we informed petitioner that his petition appeared untimely.

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ECF No. 31. Therefore, we ordered petitioner to show that either his amended petition meets

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AEDPA’s statute of limitations or that his new claims “relate back” to his original claims. Id. at

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5. Petitioner made no arguments in support of either of these requirements in his response to our

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order to show cause. Instead, petitioner stated that he mistakenly believed that our grant of a stay

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under Kelly tolled the federal habeas statute of limitations for his new claims while he exhausted

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those claims. ECF No. 32 at 1. On the contrary, a stay under Kelly “does nothing to protect a

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petitioner’s unexhausted claims from untimeliness.” King, 564 F.3d at 1141.

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For petitioner to proceed with all his claims in his amended petition, he must either show

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that his amended petition meets AEDPA’s statute of limitations or that his new claims relate back

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to his original claims. Although it appears that the petition cannot be made timely through

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statutory tolling, petitioner may be entitled to equitable tolling if he can show that “(1) that he has

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

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and prevented timely filing.” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting

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Holland v. Florida, 560 U.S. 631, 649 (2010)). Petitioner may also argue that his new claims

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relate back to his old claims because they share a “common core of operative facts.” See Mayle,

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545 at U.S. 659. As we previously noted, petitioner may have difficulty meeting either of these

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requirements. ECF No. 31 at 5.

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Alternatively, petitioner may elect to proceed with his original petition, which contains his
four claims of trial court error only. ECF No. 1 at 3. In doing so, petitioner will preserve his
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opportunity to seek relief on at least some of his claims. He will also lose the opportunity to

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proceed with his ineffective assistance of counsel claims. However, considering that petitioner

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may neither be able to show that his amended petition meets the statute of limitations, nor that his

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new claims relate back to his old claims, proceeding with his original petition may be petitioner’s

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only opportunity to seek habeas relief in any form.

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Order

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Petitioner shall have an additional thirty days to respond to the order to show cause why

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his amended petition should not be dismissed as untimely. ECF No. 31. Petitioner may respond

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with: (1) arguments showing how his amended petition meets the statute of limitations; (2)

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arguments showing that his new claims relate back to his old claims; or (3) a notification that he

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wishes to proceed with his original petition only.

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IT IS SO ORDERED.

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Dated:
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April 29, 2020
UNITED STATES MAGISTRATE JUDGE

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No. 206.

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