1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CARLOS ESCAMILLA, ) No. CV 21-1851-CJC (PLA) ) 13 Petitioner, ) ORDER TO SHOW CAUSE RE: DISMISSAL ) OF HABEAS PETITION 14 v. ) ) 15 RALPH DIAZ, Secretary CDCR, et al., ) ) 16 Respondents. ) ) 17 18 Carlos Escamilla (“petitioner”) initiated this action on February 26, 2021, by filing a Petition 19 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). 20 Petitioner is currently serving a sentence of life without parole pursuant to his conviction in 1993 21 in the Los Angeles County Superior Court for first degree murder (Cal. Penal Code § 187). (ECF 22 No. 1 at 21). The Petition challenges petitioner’s 1993 conviction on the ground that his current 23 confinement is unlawful because the murder charge was brought via a felony complaint, and not 24 pursuant to a grand jury indictment. (Id. at 5, 11-15). 25 / 26 27 1 For ease of reference, the Court refers to the ECF-generated page numbers when citing 28 1 After a careful review, it appears the Petition should be dismissed as time barred and for 2 failure to state a cognizable claim. 3 A. STATUTE OF LIMITATIONS 4 The Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 5 (“AEDPA”) one-year statute of limitations period, as set forth under 28 U.S.C. § 2244(d). See 6 Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997).2 In most cases, the 7 limitation period begins to run from “the date on which the judgment became final by conclusion 8 of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 9 Here, because petitioner’s 1993 conviction became final prior to the AEDPA’s enactment in 1996, 10 the statute of limitations ran from April 25, 1996 (the day after the AEDPA was enacted) to April 11 24, 1997. See Malcolm v. Payne, 281 F.3d 951, 955 (9th Cir. 2002). 12 The Petition was filed more than twenty-three years after the statute of limitations expired 13 in 1997. Absent sufficient statutory or equitable tolling, the present action is time barred. 14 This one-year limitation period is “statutorily tolled” while a “properly filed application for 15 State post-conviction or other collateral review with respect to the pertinent judgment or claim is 16 pending.” 28 U.S.C. § 2244(d)(2). This provision tolls the statute for the time during which a state 17 prisoner is attempting, through proper use of state court procedures, to exhaust state court 18 remedies with regard to his claims, through a particular post-conviction petition or application. The 19 statute is not tolled between the time a final decision is issued on direct review and the time the 20 first state collateral challenge is filed, because there is no case “pending” during that time. See 21 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 22 Here, there is no indication that statutory tolling applies. The state court habeas denials 23 attached to the Petition show that petitioner sought state habeas relief in 2020 -- long after the 24 one-year period ended. (See ECF No. 1 at 16-24). Accordingly, the recent state petitions do not 25 trigger tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) 26 27 2 Beeler was overruled on other grounds in Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 28 1 does not permit the reinitiation of the limitations period that has ended before the state petition was 2 filed”). 3 Nor does it appear that petitioner is entitled to equitable tolling. The AEDPA statute of 4 limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 5 645, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010). In order to qualify, a petitioner must demonstrate 6 (1) that he has been pursuing his rights diligently, and (2) that an “extraordinary circumstance” 7 stood in his way that prevented him from timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 8 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). The “extraordinary circumstance” 9 requirement “suggests that an external force must cause the untimeliness, rather than . . . merely 10 oversight, miscalculation or negligence on [the petitioner’s] part, all of which would preclude the 11 application of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 12 2009) (internal quotation marks and citation omitted). “The petitioner must additionally show that 13 the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary 14 circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 998 15 (9th Cir. 2009) (citations, internal quotations marks, and brackets omitted). 16 Petitioner has presented nothing to show that he is entitled to equitable tolling. Accordingly, 17 it appears this action is barred by the statute of limitations. 18 B. FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 19 A petitioner may seek federal habeas relief from a state court conviction or sentence if he 20 is contending that he is in custody in violation of the Constitution or laws or treaties of the United 21 States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L. 22 Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 23 2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally 24 are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 25 (9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”). 26 Here, petitioner’s claim alleging a constitutional violation because he was not charged via 27 a grand jury indictment does not present a federal question. James v. Reese, 546 F.2d 325, 327 28 (9th Cir. 1976). “The grand jury requirement of the Fifth Amendment is not applicable to the 1 states, and accordingly, prosecution via an information is not unconstitutional.” Id. at 327-28 2 (citation omitted); see also Caisse v. Mattheson, 2020 WL 5760284, at *2 (N.D. Cal. Sept. 28, 3 2020) (“There is no federal constitutional provision . . . requiring that a criminal defendant be 4 informed of the nature and cause of the charges against him via a grand jury indictment[.]”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CARLOS ESCAMILLA, ) No. CV 21-1851-CJC (PLA) ) 13 Petitioner, ) ORDER TO SHOW CAUSE RE: DISMISSAL ) OF HABEAS PETITION 14 v. ) ) 15 RALPH DIAZ, Secretary CDCR, et al., ) ) 16 Respondents. ) ) 17 18 Carlos Escamilla (“petitioner”) initiated this action on February 26, 2021, by filing a Petition 19 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). 20 Petitioner is currently serving a sentence of life without parole pursuant to his conviction in 1993 21 in the Los Angeles County Superior Court for first degree murder (Cal. Penal Code § 187). (ECF 22 No. 1 at 21). The Petition challenges petitioner’s 1993 conviction on the ground that his current 23 confinement is unlawful because the murder charge was brought via a felony complaint, and not 24 pursuant to a grand jury indictment. (Id. at 5, 11-15). 25 / 26 27 1 For ease of reference, the Court refers to the ECF-generated page numbers when citing 28 1 After a careful review, it appears the Petition should be dismissed as time barred and for 2 failure to state a cognizable claim. 3 A. STATUTE OF LIMITATIONS 4 The Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 5 (“AEDPA”) one-year statute of limitations period, as set forth under 28 U.S.C. § 2244(d). See 6 Calderon v. U.S. Dist. Ct. (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997).2 In most cases, the 7 limitation period begins to run from “the date on which the judgment became final by conclusion 8 of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 9 Here, because petitioner’s 1993 conviction became final prior to the AEDPA’s enactment in 1996, 10 the statute of limitations ran from April 25, 1996 (the day after the AEDPA was enacted) to April 11 24, 1997. See Malcolm v. Payne, 281 F.3d 951, 955 (9th Cir. 2002). 12 The Petition was filed more than twenty-three years after the statute of limitations expired 13 in 1997. Absent sufficient statutory or equitable tolling, the present action is time barred. 14 This one-year limitation period is “statutorily tolled” while a “properly filed application for 15 State post-conviction or other collateral review with respect to the pertinent judgment or claim is 16 pending.” 28 U.S.C. § 2244(d)(2). This provision tolls the statute for the time during which a state 17 prisoner is attempting, through proper use of state court procedures, to exhaust state court 18 remedies with regard to his claims, through a particular post-conviction petition or application. The 19 statute is not tolled between the time a final decision is issued on direct review and the time the 20 first state collateral challenge is filed, because there is no case “pending” during that time. See 21 Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). 22 Here, there is no indication that statutory tolling applies. The state court habeas denials 23 attached to the Petition show that petitioner sought state habeas relief in 2020 -- long after the 24 one-year period ended. (See ECF No. 1 at 16-24). Accordingly, the recent state petitions do not 25 trigger tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) 26 27 2 Beeler was overruled on other grounds in Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 28 1 does not permit the reinitiation of the limitations period that has ended before the state petition was 2 filed”). 3 Nor does it appear that petitioner is entitled to equitable tolling. The AEDPA statute of 4 limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 5 645, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010). In order to qualify, a petitioner must demonstrate 6 (1) that he has been pursuing his rights diligently, and (2) that an “extraordinary circumstance” 7 stood in his way that prevented him from timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 8 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). The “extraordinary circumstance” 9 requirement “suggests that an external force must cause the untimeliness, rather than . . . merely 10 oversight, miscalculation or negligence on [the petitioner’s] part, all of which would preclude the 11 application of equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 12 2009) (internal quotation marks and citation omitted). “The petitioner must additionally show that 13 the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary 14 circumstances made it impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 998 15 (9th Cir. 2009) (citations, internal quotations marks, and brackets omitted). 16 Petitioner has presented nothing to show that he is entitled to equitable tolling. Accordingly, 17 it appears this action is barred by the statute of limitations. 18 B. FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 19 A petitioner may seek federal habeas relief from a state court conviction or sentence if he 20 is contending that he is in custody in violation of the Constitution or laws or treaties of the United 21 States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L. 22 Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 23 2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally 24 are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 25 (9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”). 26 Here, petitioner’s claim alleging a constitutional violation because he was not charged via 27 a grand jury indictment does not present a federal question. James v. Reese, 546 F.2d 325, 327 28 (9th Cir. 1976). “The grand jury requirement of the Fifth Amendment is not applicable to the 1 states, and accordingly, prosecution via an information is not unconstitutional.” Id. at 327-28 2 (citation omitted); see also Caisse v. Mattheson, 2020 WL 5760284, at *2 (N.D. Cal. Sept. 28, 3 2020) (“There is no federal constitutional provision . . . requiring that a criminal defendant be 4 informed of the nature and cause of the charges against him via a grand jury indictment[.]”). 5 Likewise, to the extent petitioner asserts that the use of a felony complaint as the charging 6 document violated California law, such a challenge only presents a state law issue, and thus does 7 not state a claim for federal habeas relief. See McGuire, 502 U.S. at 68. 8 C. ORDER TO SHOW CAUSE AND OPTION TO DISMISS PETITION 9 Based on the foregoing, petitioner is ordered to show cause why the instant Petition 10 should not be dismissed. To satisfy this Order to Show Cause, no later than March 25, 2021, 11 petitioner must submit to the Court a response making clear his arguments, if any, as to why the 12 Petition should not be dismissed (1) as time barred, and/or (2) for failure to state a cognizable 13 claim. 14 Alternatively, if petitioner agrees that the Petition should be dismissed without prejudice for 15 the reasons discussed above, he may file a notice of voluntary dismissal pursuant to Federal Rule 16 of Civil Procedure 41(a)(1) (“Rule 41”). Rule 41 allows for the voluntary dismissal of an action by 17 a petitioner3 without prejudice and without a court order before the opposing party serves either 18 an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1); Hamilton v. 19 Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). Respondent has not 20 yet appeared in this action. 21 22 3 Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent 23 with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Hilton v. Braunskill, 481 U.S. 770, 776 & n.5 (1987) (Federal Rules of Civil Procedure 24 may be applied to habeas petitions so long as they are not inconsistent with the Rules Governing Section 2254 Cases). The Rules Governing Section 2254 Cases do not contain a specific 25 provision addressing voluntary dismissals. See Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 26 1993) (applying Rule 41 to a petitioner’s request for voluntary dismissal of his habeas petition); Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996) (“a Rule 41(a)(1) voluntary dismissal is both 27 appropriate and consistent with the rules governing habeas cases”); Woods v. Knowles, 2003 WL 21767470, at *1 (N.D. Cal. July 23, 2003). Thus, Rule 41, which otherwise governs such 28 1 The Court clerk is directed to send petitioner a copy of a blank Central District form titled 2| “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)” along with this 3|| Order to Show Cause; petitioner may dismiss the action by checking the first box on that form. 4 Failure to respond by March 25, 2021, will result in the Petition being summarily 5| dismissed for the reasons set forth above, and for failure to prosecute and follow court 6| orders. Jae kK. Meant DATED: March 3, 2021 PAUL L. ABRAMS 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28