Gonzales v. People of the State of California

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 03/10/17 granting 6 Motion to Proceed IFP. Within 30 days of service of this order, petitioner must show cause why the petition should not be dismissed as untimely. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH GONZALES,

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Petitioner,

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No. 2:15-cv-1886 AC P

v.

ORDER

THE PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 and has requested leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Petitioner has consented to the jurisdiction of the undersigned

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magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No.

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3.

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I.

Examination of the affidavit reveals petitioner is unable to afford the costs of this action.

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Application to Proceed In Forma Pauperis

Accordingly, leave to proceed in forma pauperis (ECF No. 6) is granted. 28 U.S.C. § 1915(a).
II.

Petition for Writ of Habeas Corpus
Petitioner appears to challenge his sentence on the grounds that there was insufficient

evidence of the prior strike convictions used to support a life sentence. ECF No. 5 at 4.
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Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition “[i]f

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it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled

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to relief in the district court.” Section 2244(d)(1) of Title 28 of the United States Code contains a

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one-year statute of limitations for filing a habeas petition in federal court. This statute of

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limitations applies to habeas petitions filed after April 24, 1996, when the Antiterrorism and

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Effective Death Penalty Act (AEDPA) went into effect. Cassett v. Stewart, 406 F.3d 614, 624

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(9th Cir. 2005). The one-year clock commences from one of several alternative triggering dates.

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See 28 U.S.C. § 2244(d)(1). In this case the applicable date is that “on which the judgment

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became final by the conclusion of direct review or the expiration of the time for seeking such

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review.” § 2244(d)(1)(A). However, under the AEDPA, the statute of limitations is tolled during

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the time that a properly filed application for state post-conviction or other collateral review is

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pending in state court. 28 U.S.C. § 2244(d)(2).

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After reviewing the petition for habeas corpus, it appears that the petition is untimely.

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The petition provides no information regarding the date of conviction or whether petitioner

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exhausted his state court remedies by appealing to the California Supreme Court. ECF No. 5 at 1-

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3. However, a review of the California Supreme Court’s electronic docketing system1 shows that

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petitioner’s most recent filing in that court was a petition for review that was dismissed and

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remanded to the court of appeal on March 29, 2000.2 Even if the court assumes, without

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deciding, that petitioner exhausted his state court remedies through his last California Supreme

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Court petition, the instant petition is clearly untimely unless petitioner is entitled to statutory or

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equitable tolling. The petition does not indicate that petitioner properly filed an application for

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This court may take judicial notice of the records of other courts. See United States v. Howard,
381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of
accurate determination by sources whose accuracy cannot reasonably be questioned).
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See docket for California Supreme Court Case Number S075153 at
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1806884&doc_no
=S075153.
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state post-conviction or other collateral review in state court.3 Id. at 2-3. Thus, it does not appear

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that petitioner is entitled to statutory tolling.

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A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of

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limitations only if the petitioner shows: “‘(1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland

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v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);

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Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). “[T]he statute-of-limitations clock stops

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running when extraordinary circumstances first arise, but the clock resumes running once the

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extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable

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diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing

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Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014). An “extraordinary circumstance” has

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been defined as an external force that is beyond the inmate’s control. Miles v. Prunty, 187 F.3d

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1104, 1107 (9th Cir. 1999). “The diligence required for equitable tolling purposes is ‘reasonable

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diligence,’ not ‘maximum feasible diligence.’” Holland, 560 U.S. at 653 (internal citations and

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additional quotation marks omitted); see also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).

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A showing of actual innocence can also satisfy the requirements for equitable tolling. Lee

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v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc); McQuiggin v. Perkins, 133 S. Ct. 1924,

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1928 (2013). “[W]here an otherwise time-barred habeas petitioner demonstrates that it is more

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likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt,

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the petitioner may pass through the Schlup [v. Delo, 513 U.S. 298 (1995),]4 gateway and have his

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constitutional claims heard on the merits.” Lee, 653 F.3d at 937; accord, McQuiggin, 133 S.Ct. at

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1928. To make a credible claim of actual innocence, petitioner must produce “new reliable

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evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

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The only attachment annexed to the petition indicates that petitioner filed a “Motion for
Modification of Sentence” on February 6, 2015 in the superior court. ECF No. 5 at 7-8.
On June 24, 2015, the court dismissed the motion for lack of jurisdiction. Id.
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In Schlup, the Supreme Court announced that a showing of actual innocence could excuse a
procedural default and permit a federal habeas court to reach the merits of otherwise barred
claims for post-conviction relief.
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critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner

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cannot pursue a claim for actual innocence without new evidence to offer for consideration.

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III.

Summary

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Petitioner’s request to proceed in forma pauperis is granted.

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Petitioner will have thirty days to explain to the court why his petition is not late. Failure

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to show the court that the petition is not untimely will result in the case being dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 6) is granted.

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2. Within thirty days of service of this order, petitioner must show cause why the petition

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should not be dismissed as untimely. Failure to comply with this order will result in dismissal of

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the petition.

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DATED: March 10, 2017

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