CIVIL MINUTES – GENERAL
Case No. 5:21-cv-1670-RSWL (MAR) Date: November 2, 2021 Title: Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
ERICA BUSTOS N/A Deputy Clerk Court Reporter / Recorder
Attorneys Present for Petitioner: Attorneys Present for Defendants: N/A N/A Proceedings: (In Chambers) ORDER TO SHOW CAUSE WHY FIRST AMENDED PETITION SHOULD NOT BE SUMMARILY DISMISSED AS UNTIMELY
On September 23, 2021, Petitioner Paul Hupp (“Petitioner”), proceeding pro se, constructively filed1 a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 (“section 2254”) challenging his January 30, 2019 conviction. ECF Docket No. (“Dkt.”) 1 at 1. On October 12, 2021, the Court ordered Petitioner to file a First Amended Petition. Dkt. 3.
On October 22, 2021, Petitioner constructively filed: a First Amended Petition (“FAP”), Dkt. 6; a Reply to the Court’s October 12, 2021 Minute Order, Dkt. 7; and a “Motion for Extension of Time to File for 90 days to exhaust State Habeas Corpus Action” (“Motion”) requesting a “90- day stay of this case” while Petitioner exhausts his ineffective assistance of counsel (“IAC”) claim in the California Supreme Court. Dkt. 9. However, the Petition also appears untimely, and thus Petitioner’s Motion, and any potential stay, could be moot.
In fact, in his Reply to the Court’s October 12, 2021 Minute Order Petitioner appears to acknowledge that the instant Petition was not timely filed.2 Dkt. 7 at 2 (“Petition by [Petitioner] was not timely because [Petitioner] was in custody of Riverside County on 9-15-2021 when Petition was due. [Petitioner] mailed in Petition at earliest possible point[.]”). However, he also asks this Court to toll “the deadline as a result.” Id.
1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 2 AEDPA “sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 2012). Ordinarily, the limitations period runs from the date on which the prisoner’s judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). “When, on direct appeal, review is sought in the state’s highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is ninety days after the decision of the state’s highest court.” Porter v. Ollison, 620 F.3d 952, 958–59 (9th Cir. 2010) (citations omitted). CIVIL MINUTES – GENERAL
Case No. 5:21-cv-1670-RSWL (MAR) Date: November 2, 2021 Title: Accordingly, the Court will not make a final determination regarding whether the Petition should be dismissed as untimely and will give Petitioner an opportunity to address the grounds entitling him to tolling3 here.
Thus, the Court ORDERS Petitioner to respond to this Order to Show Cause within twenty-one (21) days of this Order, by November 23, 2021, addressing:
(1) the timeliness of the instant Petition—including any grounds entitling him to tolling; and (2) the time period(s) when the statute of limitations should be tolled here.
The Court further instructs the Clerk of Court to serve the First Amended Petition on the California Attorney General. The assigned Deputy Attorney General will be required to file a notice of appearance within fourteen (14) days. However, no response from the Attorney General will be required until further notice from the Court.
IT IS SO ORDERED.
: Initials of Preparer eb
3 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year statute of limitations while a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.’ ” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). The gaps in between different “rounds” of review may be tolled if (1) subsequent petitions were “limited to an elaboration of the facts relating to the claims in the first petition” and (2) the subsequent petitions “were ultimately denied on the merits.” King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003).
In addition to the statutory tolling provided for by 28 U.S.C. § 2244(d)(2), the “AEDPA limitations period may be tolled” when it is “equitably required.” Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011). The “threshold necessary to trigger equitable tolling [under AEDPA] is very high.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (alteration in original). A court may grant equitable tolling only where “‘extraordinary circumstances’ prevented an otherwise diligent petitioner from filing on time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). The petitioner “bears a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the rule.’ ” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015). □□□□□□□□□□ L) C 4 wn CG? CTEAL □□□□□□□ OF □□□□□□□□ NAME —~—O [L627 _S. Hatta ST, PRISON IDENTIFICATION/BOOKING NO. DAN CA 92010 ADDRESS OR PLACE OF CONFINEMENT
Note: It is your responsibility to notify the Clerk of Court in writing of any change of address. If represented by an attorney, provide his or her name, address, telephone and facsimile numbers, and e-mail address. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER: \ 5 cv 2Z)1-CV-/626 -@Suc- MAL | A U L |W \ L To be supplied by the Clerk of the United States District Court FULL NAME (Include name under which you were convicted ) Petitioner, v. AMENDED ‘4 PETITION FOR WRIT OF HABEAS CORPUS Koes Bo Woe Cr) A G BY A PERSON IN STATE CUSTODY 28 U.S.C. § 2254 NAME OF WARDEN, SUPERINTENDENT, JAILOR, OR AUTHORIZED PERSON HAVING CUSTODY OF PETITIONER . □□ Respondent. }| PLACE/COUNTY OF CONVICTION ¢ Zz Uy (STE CO PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT (List by case number ) CV CV INSTRUCTIONS - PLEASE READ CAREFULLY 1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief from the conviction and/or the sentence. This form is your petition for relief. 2. In this petition, you may challenge the judgment entered by only one California state court.
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CIVIL MINUTES – GENERAL
Case No. 5:21-cv-1670-RSWL (MAR) Date: November 2, 2021 Title: Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
ERICA BUSTOS N/A Deputy Clerk Court Reporter / Recorder
Attorneys Present for Petitioner: Attorneys Present for Defendants: N/A N/A Proceedings: (In Chambers) ORDER TO SHOW CAUSE WHY FIRST AMENDED PETITION SHOULD NOT BE SUMMARILY DISMISSED AS UNTIMELY
On September 23, 2021, Petitioner Paul Hupp (“Petitioner”), proceeding pro se, constructively filed1 a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 (“section 2254”) challenging his January 30, 2019 conviction. ECF Docket No. (“Dkt.”) 1 at 1. On October 12, 2021, the Court ordered Petitioner to file a First Amended Petition. Dkt. 3.
On October 22, 2021, Petitioner constructively filed: a First Amended Petition (“FAP”), Dkt. 6; a Reply to the Court’s October 12, 2021 Minute Order, Dkt. 7; and a “Motion for Extension of Time to File for 90 days to exhaust State Habeas Corpus Action” (“Motion”) requesting a “90- day stay of this case” while Petitioner exhausts his ineffective assistance of counsel (“IAC”) claim in the California Supreme Court. Dkt. 9. However, the Petition also appears untimely, and thus Petitioner’s Motion, and any potential stay, could be moot.
In fact, in his Reply to the Court’s October 12, 2021 Minute Order Petitioner appears to acknowledge that the instant Petition was not timely filed.2 Dkt. 7 at 2 (“Petition by [Petitioner] was not timely because [Petitioner] was in custody of Riverside County on 9-15-2021 when Petition was due. [Petitioner] mailed in Petition at earliest possible point[.]”). However, he also asks this Court to toll “the deadline as a result.” Id.
1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 2 AEDPA “sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition.” Thompson v. Lea, 681 F.3d 1093, 1093 (9th Cir. 2012). Ordinarily, the limitations period runs from the date on which the prisoner’s judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). “When, on direct appeal, review is sought in the state’s highest court but no petition for certiorari to the United States Supreme Court is filed, direct review is considered to be final when the certiorari petition would have been due, which is ninety days after the decision of the state’s highest court.” Porter v. Ollison, 620 F.3d 952, 958–59 (9th Cir. 2010) (citations omitted). CIVIL MINUTES – GENERAL
Case No. 5:21-cv-1670-RSWL (MAR) Date: November 2, 2021 Title: Accordingly, the Court will not make a final determination regarding whether the Petition should be dismissed as untimely and will give Petitioner an opportunity to address the grounds entitling him to tolling3 here.
Thus, the Court ORDERS Petitioner to respond to this Order to Show Cause within twenty-one (21) days of this Order, by November 23, 2021, addressing:
(1) the timeliness of the instant Petition—including any grounds entitling him to tolling; and (2) the time period(s) when the statute of limitations should be tolled here.
The Court further instructs the Clerk of Court to serve the First Amended Petition on the California Attorney General. The assigned Deputy Attorney General will be required to file a notice of appearance within fourteen (14) days. However, no response from the Attorney General will be required until further notice from the Court.
IT IS SO ORDERED.
: Initials of Preparer eb
3 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year statute of limitations while a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.’ ” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). The gaps in between different “rounds” of review may be tolled if (1) subsequent petitions were “limited to an elaboration of the facts relating to the claims in the first petition” and (2) the subsequent petitions “were ultimately denied on the merits.” King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003).
In addition to the statutory tolling provided for by 28 U.S.C. § 2244(d)(2), the “AEDPA limitations period may be tolled” when it is “equitably required.” Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011). The “threshold necessary to trigger equitable tolling [under AEDPA] is very high.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (alteration in original). A court may grant equitable tolling only where “‘extraordinary circumstances’ prevented an otherwise diligent petitioner from filing on time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). The petitioner “bears a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the rule.’ ” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2015). □□□□□□□□□□ L) C 4 wn CG? CTEAL □□□□□□□ OF □□□□□□□□ NAME —~—O [L627 _S. Hatta ST, PRISON IDENTIFICATION/BOOKING NO. DAN CA 92010 ADDRESS OR PLACE OF CONFINEMENT
Note: It is your responsibility to notify the Clerk of Court in writing of any change of address. If represented by an attorney, provide his or her name, address, telephone and facsimile numbers, and e-mail address. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER: \ 5 cv 2Z)1-CV-/626 -@Suc- MAL | A U L |W \ L To be supplied by the Clerk of the United States District Court FULL NAME (Include name under which you were convicted ) Petitioner, v. AMENDED ‘4 PETITION FOR WRIT OF HABEAS CORPUS Koes Bo Woe Cr) A G BY A PERSON IN STATE CUSTODY 28 U.S.C. § 2254 NAME OF WARDEN, SUPERINTENDENT, JAILOR, OR AUTHORIZED PERSON HAVING CUSTODY OF PETITIONER . □□ Respondent. }| PLACE/COUNTY OF CONVICTION ¢ Zz Uy (STE CO PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT (List by case number ) CV CV INSTRUCTIONS - PLEASE READ CAREFULLY 1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief from the conviction and/or the sentence. This form is your petition for relief. 2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge judgments entered by more than one California state court, you must file a separate petition for each court. 3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 4, Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum. 5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. You must also state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. 6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee. 7. When you have completed the form, send the original and two copies to the following address: Clerk of the United States District Court for the Central District of California United States Courthouse ATTN: Intake/Docket Section 255 East Temple Street, Suite TS-134 Los Angeles, California 90012 CV-69 (05/18) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY □□□□□□□□□□□□□□□□□□□□□□□□ Page lof li
PLEASE COMPLETE THE FOLLOWING (check appropriate number): This petition concerns: 1. [Wa conviction and/or sentence. 2. Lprison discipline. 3. [Ja parole problem. 4. [Jother. PETITION 1. Venue a. Place of detention CtveE fe STD.e Co Urey [cap TA RO LA uz S7 □□□□ b. Place of conviction and sentence qh VaASIDe Cours ITO QALS AMO S YES ATE moet MeaBATOo! Dio UiF-1B0113) 2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked). a. Nature of offenses involved (include all counts) : Pe b NTA Yi WAT OFr 130i 3/ , □□□ MIS Perm Ae 296 % Adu And PC lpo Vay OF Covue7 ORDER b. Penal or other code section or sections: ® V7 olA? ObS OF” sy AT forj— BA □□ ) On. \ PL. 295 ASsauecr Deady OID): me y’ Of 2 ) 5 : iG a wha 1 CM 5 Ct ye ~ me Lanieh □□ c. Case number: {4a EC l Bott 4, | TAM ~ IF OZ 34 d, Date of conviction: |- 24- 20 19 e. Date of sentence: {- 2G- DvG f. Length of sentence on each count: q0 wees FV en
g. Plea (check one): DANot guilty L] Guilty [_] Nolo contendere h. Kind of trial (check one): Dhlury [_] Judge only
3. Did you appeal to the California Court of Appeal from the judgment of conviction? Aves L]No If so, give the following information for yousfappeal (and attach a copy of the Court of Appeal decision if available): a. Casenumber: UN) wo ”y a LM Cr Daw” =~ | + O72 4 4 Ss b. Grounds raised (tist each): (1) Aetiurs not Comsti tuts eS ays oe 166 (2) TAC 84 Teac 4 On Am AT DCA CV-69 (05/18) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 2of ll
(3) (4) (5) (6) c. Date of decision: q- S- Zoe » PAS De d. Result (Jen. FD
4. Ifyou did appeal, did you alsq file a Petition for Review with the California Supreme Court of the Court of Appeal decision? Yes CO yor . If so, give the following information (and attach copies of the Petition for Review and the Supreme Court ruling if available): a. Case number: U MW KK bel tnt band b. Grounds raised (list each): (1) 4 ho er 7 □ $$. Of Couin ct "4 wt 4 2 Cth. (2). 2 Crt AK | AT (3) 4) Muggs ACT ws Dy Not Consra D Pe ays - □□□ (6)_ ORD) PC | ot flo Ye ORDER CK) YINATC □□ OF (6) Peohit2o» a!) R2F-jZ,01B) c. Date of decision: Nd iA d. Result
5. If you did not appeal: a. State your reasons FE b. Did you seek permission to file a late appeal? L]Yes [JNo
6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction? Yes WNo f so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and the rulings on the petitions if available): ee □ a. (1) Name of court: “] Te ( LST KIC { CO KET Ay Dene ) Oz ff □□□ □□ □ D (2) Case number: UN Kru . ee (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): [ ()—.} — 20 2 | ____ PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY G8 USC. $2554) Page 3 of 1
(4) Grounds raised (list each): (a2) “XV Cy (b) (c) (d) □ (e) pe (f) (5) Date of decision: (6) Result Ko (UT 16
(7) Was an evidentiary hearing held? []Yes No cn b. (1) Name ofa CN Su pe Ce, get J (2) Case number: a (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): (4) Grounds raised (list each): (a) AW (b) © Ubeans Yetofyay Fela) jo. 2 20?) (d) (e) (f) (5) Date of decision: (6) Result WO WU hy,
(7) Was an evidentiary hearing held? CLlYes [YNo
c. (1) Name of court: (2) Case number: (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): (4) Grounds raised (ist each): (a) (b) (c) (d) (e) (f)
(05/18) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28U.S.C.§2254) □□□□ 4of 11
(5) Date of decision: (6) Result
(7) Was an evidentiary hearing held? Yes []No
7. Did you file a petition for certiorari in the United States Supreme Court? [] Yes 4 No If yes, answer the following: (1) Docket or case number (if you know): (2) Result:
(3) Date of result (if you know): (4) Citation to the case (if you know):
8. For his pettio state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than five grounds. Summarize briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you must state facts specifically setting forth what your attorney did or failed to do. CAUTION: — Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust your state court remedies with respect to each ground on which you are requesting relief from the federal court. This means that, prior to seeking relief from the federal court, you first must present all of your grounds to the California Supreme Court. a. Groundone: ~] Ac Z
(1) Supporting FACTS: [\yo7 | AQ NOT Cony KX CYS PC 166, AMO O27) Nor “Thies EUs enslS aX ETT +e AS A BeEsuct Ly Wy NOT (lATE AA Tol) TF KZK- ll eM \(Teie
(2) Did you raise this claim on direct appeal to the California Court of Appeal? (] Yes □□□□□ (3) Did you raise this claim in a Petition for Review to the California Supreme Court? _[_] Yes □□□□ (4) Did you raise this claim in a habeas petition to the California Supreme Court? Ayes LINo
b. Ground two:
(1) Supporting FACTS:
CV-69 (05/18) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C. § 2254) Page 5 of 11
(3) Did you raise this claim in a Petition for Review to the California Supreme Court? [Yes LINo (4) Did you raise this claim in a habeas petition to the California Supreme Court? [] Yes LINo
9. If any of the grounds listed in paragraph 8 were not previously presented to the California Supreme Court, state briefly which grounds were not presented, and give your reasons: TAC was seus? % CA ME Coue™ 221:
10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction? ]Yes Pro If so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and the rulings on the petitions if available): a. (1) Name of court: (2) Case number: (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): (4) Grounds raised (lst each): (a) (b) (c) (d) (e) (f) (5) Date of decision: (6) Result
(7) Was an evidentiary hearing held? |] Yes x No
b. (1) Name of court: (2) Case number: (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): (4) Grounds raised (list each): (a) (b) Ce eee CC (5) Date of decision: CV-69 ~~ PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY □□□□□□□□□□□□□□□□□□□□□□□ 7of il
(6)Resultt
(7) Was an evidentiary hearing held? [1Yes L]No
11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to this judgment of conviction? ves L]No If so, give the following information (and attach a copy of the petition if available): (1)Name ofcourt: [DG)\- FS {2 □□ WILD @ bs Supa □ angel (2) Case number: (4 4 Wo (3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing): ly ~-2)- 9 ( ye (4) Grounds raised (list each): (a) TAY (by (c) Cy Cy (f)
12. Are you presently represented by counsel? [_] Yes □□□ If so, provide name, address and telephone number:
WHEREFORE, petitioner prays that the Court grant petitioner all relief to which he may be entitled in this proceeding. Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Dy dee Executed on /O-22— 202 ) \ Que ZZ Date Signature of Petitioner
ee SOTTTTAN □□□ WRIT OF HABEAS CORPUS □□ A PERSON IN STATE CUSTODY (28 U.S.C. § 2254) Page 8 of 11
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