Coleman v. Baughman

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 6/28/2017 ORDERING Petitioner to submit either the filing fee or an IFP application within 30 days of this order's entry and ORDERING Petitioner to show cause, in writing, why his petition should not be dismissed as untimely within 30 days of this order's entry. (Henshaw, R)

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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 SAAHDI ABDUL COLEMAN, 12 13 14 No. 2:17-cv-00882 AC P Petitioner, v. ORDER D. BAUGHMAN, 15 Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. He has filed a habeas corpus petition (ECF No. 1) which, for the reasons 19 identified below, appears to be untimely. Petitioner will be afforded an opportunity to show 20 cause as to why this petition should not be recommended for dismissal with prejudice on the 21 ground that it is untimely. Petitioner will also be directed to submit either the filing fee or an 22 application to proceed in forma pauperis within thirty days of this order’s entry. 23 I. Legal Standards 24 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 25 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 26 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 28 Rule 4 Governing Section 2254 Cases. 1 1 II. 2 The conviction underlying this petition occurred on June 4, 2003. ECF No. 1 at 1. 3 Petitioner’s direct appeal was completed when the California Supreme Court denied his petition 4 for review on October 18, 2004. Id. at 2-3. 5 Background Petitioner filed a habeas petition with the Sacramento County Superior Court on January 6 11, 2006. Id. at 3. This petition was denied on May 1, 2006. Id. The court of appeals denied the 7 petition on May 18, 2006. Id. at 4. Then, the California Supreme Court denied the petition on 8 June 13, 2007. Id. at 4-5.1 9 In his current petition, petitioner argues that the state lacks the legal authority to use a 10 “prohibited” conviction to enhance a subsequent sentence. Id. at 5. Petitioner notes that he pled 11 guilty to robbery in 1996 as part of a plea bargain. Id. at 6. He now argues that this plea bargain 12 was illegal. Id. Petitioner states that he is not challenging the 1996 conviction itself, but only the 13 application of that conviction to enhance his later sentence in 2003. Id. at 7. He claims the use of 14 this illegal conviction violates his due process rights. Id. 15 III. 16 It is apparent from the face of the petition that it is untimely. A federal habeas petition Analysis 17 must be filed within one year of: (1) the date the state court judgment became final, either by 18 conclusion of direct review or the expiration of time to seek such review; (2) the date on which an 19 impediment to filing created by state action is removed (if the applicant was prevented from filing 20 by that action); (3) the date on which a constitutional right is newly recognized by the Supreme 21 Court and made retroactive on collateral review; or (4) the date on which the factual predicate of 22 the claim could have been recognized through the exercise of due diligence. See 28 U.S.C. § 23 2244(d). The petition indicates that petitioner’s conviction became final at the conclusion of 24 direct review on October 18, 2004 – more than a decade ago. This petition was not filed until 25 April 26, 2017. Petitioner states that his petition should be construed as timely because he is 26 challenging an illegal, unauthorized sentence. There is no authority to support this proposition. 27 28 1 Petitioner also indicates that he filed another state habeas petition in 2016, but this does not appear to have any bearing on the issue of timeliness. ECF No. 1 at 8. 2 1 All cognizable federal habeas petitions allege that the petitioner’s custody violates the 2 Constitution or other federal law. The limitations period would have no meaning if petitioners 3 were able to circumvent it simply by claiming that they were subject to an illegal sentence. 4 The court will afford petitioner an opportunity to show cause and raise any other 5 arguments he might have as to why his petition is timely before it recommends dismissal with 6 prejudice. 7 IV. 8 It is HEREBY ORDERED that: 9 1. 10 11 12 13 14 15 Conclusion Petitioner must submit either the filing fee or an application to proceed in forma pauperis within thirty days of this order’s entry; 2. Petitioner has thirty days from the date of this order’s entry to show cause, in writing, why his petition should not be dismissed as untimely; 3. The Clerk of the Court is directed to send petitioner the application to proceed in forma pauperis by a prisoner; and 4. Failure to comply with this order will result in a recommendation that this action 16 be dismissed. 17 DATED: June 28, 2017 18 19 20 21 22 23 24 25 26 27 28 3

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