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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID LEONARD BAKER, 12 Petitioner, 13 14 15 No. 2:16-cv-0907 AC P v. ORDER WARDEN, SALINAS VALLEY STATE PRISON, Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the 19 undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 20 305(a). ECF No. 4. By order filed October 20, 2016, petitioner was ordered to show cause why his petition 21 22 should not be dismissed as untimely. ECF No. 5. In ordering petitioner to show cause, the court 23 advised him of the one-year statute of limitation and the standards for equitable tolling. Id. 24 Petitioner has responded to the order to show cause, but has not explained why his petition is 25 timely. ECF No. 9. He states that “[i]n November, December this court issued a 2014 Certificate 26 of Probable Cause.” Id. A review of this court’s records shows that petitioner previously 27 attempted to bring a habeas petition on similar grounds and it was dismissed in August 2014 as 28 //// 1 1 frivolous.1 See Baker v. Adams, 2:12-cv-1520 TLN DAD P, ECF Nos. 14, 19. In October 2014, 2 a civil rights action brought by petitioner, that also appears to have been related to the claims in 3 this petition, was dismissed for failure to prosecute. See Baker v. Secretary of Corrections, 2:14- 4 cv-2030 EFB P, ECF No. 7. There is no record of a “Certificate of Probable Cause” being issued, 5 nor does petitioner explain how such a certificate would make the instant petition timely. 6 As this court previously noted, petitioner is attempting to challenge a 1981 conviction and 7 his last filing in the California Supreme Court was a petition for writ of habeas corpus that was 8 denied on April 11, 2012. ECF No. 5 at 2-3. The court can identify no theory under which the 9 statute of limitations would have been statutorily tolled through April 11, 2012, and the instant 10 petition would be untimely even if it was. Moreover, petitioner has failed to demonstrate that he 11 is entitled to equitable tolling. 12 13 Accordingly, IT IS HEREBY ORDERED that the petition is dismissed. DATED: January 3, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 “[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)). 2

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