Hall v. Lynch

Opinion

1 2 3 6 7 NATHANIEL V. HALL, Case No. 21-cv-03352-RMI

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND

10 JEFF LYNCH, Re: Dkt. No. 2 Defendant. 11

12 13 Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 14 U.S.C. § 2254. He also filed a motion to proceed in forma pauperis and consented to the 15 jurisdiction of a Magistrate Judge. dkts. 2, 10. 17 On June 25, 2012, petitioner was convicted of aggravated mayhem, corporal injury on a 18 cohabitant, resisting a police officer and violating a protective order. People v. Hall, H038706, 19 2013 WL 6780572, at *1 (Cal. Ct. App. Dec. 23, 2013); dkt. 1 at 1. The California Court of 20 Appeal affirmed the judgment. Hall, 2013 WL 6780572, at *1. The California Supreme Court 21 denied review on March 19, 2014. People v. Hall, Case No. S215928. Petitioner filed several 22 habeas petitions in state court that were denied. dkt. 1 at 2-3, 9. 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 2 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 3 must “specify all the grounds for relief available to the petitioner . . . [and] state the facts 4 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. 5 Notice pleading is not sufficient, the petition is expected to state facts that point to a real 6 possibility of constitutional error. See Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 7 431 F.2d 688, 689 (1st Cir. 1970)). 9 As grounds for federal habeas relief, petitioner alleges that: (1) new evidence demonstrates 10 a violation of due process and his actual innocence; and (2) trial counsel was ineffective. The 11 petition is dismissed with leave to amend to address several deficiencies. 12 Petitions filed by prisoners challenging noncapital state convictions or sentences must be 13 filed within one year of the latest of the date on which: (A) the judgment became final after the 14 conclusion of direct review or the time passed for seeking direct review; (B) an impediment to 15 filing an application created by unconstitutional state action was removed, if such action prevented 16 petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, 17 if the right was newly recognized by the Supreme Court and made retroactive to cases on 18 collateral review; or (D) the factual predicate of the claim could have been discovered through the 19 exercise of due diligence. 28 U.S.C. § 2244(d)(1). 20 Petitioner’s conviction became final in 2014, thus this petition is untimely by many years. 21 Petitioner argues for a later start date due to the factual predicate of the claim not being discovered 22 until later. The victim in this case, petitioner’s girlfriend, drafted an affidavit on January 22, 2015, 23 allegedly contradicting some of her testimony at trial and calling into question the investigation 24 and conduct of the prosecutor. dkt. 1 at 16-19. Petitioner received the affidavit in 2015. Id. at 5. 25 Even if petitioner were provided a new start date in 2015, this petition is still untimely. 26 Petitioner contends that he was unable to file a habeas petition with this new evidence of 27 the affidavit due to being medicated by prison officials for mental health issues related to being 1 County Superior Court in 2020, which denied his habeas petition in a reasoned opinion. □□□ at 23- 2 || 26. The court noted that despite his assertions that he was heavily medicated and unable to pursue 3 relief for many years, he filed habeas petitions in 2015, October 25, 2018 and December 12, 2018. 4 || Id. at 23-24. Thus, petitioner was in possession of the affidavit and was able to challenge his 5 || conviction. Petitioner must address the timeliness in an amended petition. 6 The Santa Clara County Superior Court also noted that the information and arguments in 7 the victim’s affidavit were not new and the evidence at issue was presented at the preliminary 8 || hearing and trial. /d. at 25. Petitioner should address this as well. 10 1. Leave to proceed in forma pauperis (Docket No. 2) is GRANTED. 11 2. The petition is DISMISSED with leave to amend in accordance with the standards 12 set forth above. The amended petition must be filed within twenty-eight (28) days of the date this 13 order is served and must include the caption and civil case number used in this order and the 14 || words AMENDED PETITION on the first page. Failure to amend within the designated time 3 15 will result in the dismissal of these claims. A 16 3. Petitioner must keep the Court informed of any change of address and must comply 2 17 || with the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 18 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 19 Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 21 Dated: July 13, 2021 22 Hh 23 ROBERT M. ILLMAN 24 United States Magistrate Judge 25 26 27 28