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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?