Baker v. Warden

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 1/03/17 ordering the petition is dismissed. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID LEONARD BAKER,

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Petitioner,

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No. 2:16-cv-0907 AC P

v.

ORDER

WARDEN, SALINAS VALLEY STATE
PRISON,
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. Petitioner has consented to the jurisdiction of the

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undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule

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305(a). ECF No. 4.
By order filed October 20, 2016, petitioner was ordered to show cause why his petition

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should not be dismissed as untimely. ECF No. 5. In ordering petitioner to show cause, the court

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advised him of the one-year statute of limitation and the standards for equitable tolling. Id.

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Petitioner has responded to the order to show cause, but has not explained why his petition is

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timely. ECF No. 9. He states that “[i]n November, December this court issued a 2014 Certificate

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of Probable Cause.” Id. A review of this court’s records shows that petitioner previously

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attempted to bring a habeas petition on similar grounds and it was dismissed in August 2014 as

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frivolous.1 See Baker v. Adams, 2:12-cv-1520 TLN DAD P, ECF Nos. 14, 19. In October 2014,

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a civil rights action brought by petitioner, that also appears to have been related to the claims in

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this petition, was dismissed for failure to prosecute. See Baker v. Secretary of Corrections, 2:14-

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cv-2030 EFB P, ECF No. 7. There is no record of a “Certificate of Probable Cause” being issued,

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nor does petitioner explain how such a certificate would make the instant petition timely.

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As this court previously noted, petitioner is attempting to challenge a 1981 conviction and

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his last filing in the California Supreme Court was a petition for writ of habeas corpus that was

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denied on April 11, 2012. ECF No. 5 at 2-3. The court can identify no theory under which the

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statute of limitations would have been statutorily tolled through April 11, 2012, and the instant

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petition would be untimely even if it was. Moreover, petitioner has failed to demonstrate that he

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is entitled to equitable tolling.

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Accordingly, IT IS HEREBY ORDERED that the petition is dismissed.
DATED: January 3, 2017

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“[A] court may take judicial notice of its own records in other cases.” United States v. Wilson,
631 F.2d 118, 119 (9th Cir. 1980) (citing Fed. R. Evid. 201(b)(2)).
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