Richard Lee Thomas, Jr. v. Pfeiffer

• Court: District Court, C.D. California
• Decided: November 23, 2021
• Docket: 5:21-cv-01912
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 RICHARD LEE THOMAS JR., ) No. 5:21-cv-01912-CJC-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) WHY THE PETITION ) 14 CHRISTIAN PFEIFFER, ) SHOULD NOT BE ) DISMISSED ) 15 Respondent. ) ) 16

17 I. 18 INTRODUCTION 19 On November 7, 2021,1 Richard Lee Thomas Jr. (“Petitioner”), a state 20 prisoner proceeding pro se constructively filed a Petition for Writ of Habeas 21 Corpus by a Person in State Custody under 28 U.S.C. § 2254. Dkt. 1 (“Pet.” or 22 “Petition”). This is the second habeas petition Petitioner has filed in this 23 Court. The prior habeas petition, challenging his 2017 conviction in Riverside 24

25 1 Under the “mailbox rule,” “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 26 F.3d 918, 921 (9th Cir. 2002). In the absence of evidence to the contrary, courts have 27 treated a petition as delivered to prison authorities on the date the petition is signed. In this case, Petitioner’s request to proceed in forma pauperis (“IFP Application”) 28 was signed on November 7, 2021. 1 County Superior Court, was summarily dismissed without prejudice on April 2 22, 2021 per Rule 4 of the Rules Governing Section 2254 Cases in the United 3 States District Courts (“Habeas Rules”). See Thomas v. People of the State of 4 California, Case No. 5:21-cv-00246-CJC-JDE (C.D. Cal.) (“Prior Action”), 5 Dkt. 5-6. The instant Petition suffers from numerous defects, including defects 6 that resulted in the dismissal of the Prior Action. The Court therefore orders 7 Petitioner to show cause why this action should not be dismissed. 8 II. 9 PETITIONER’S CLAIMS 10 1. “Violation of federal constitutional rights. It’s that simple[.] I’m 11 being wronged in the CDCR and by the people of USA. Self-defense, self- 12 preservation. That should speak volumes & say enough, for starters. I’m being 13 denied true justice, bre.” Pet. at 5. 14 2. “Breaches of ethical, moral, procedural conducts under federal 15 constitutional law. Ineffective assistance of counsel, negligence of counsel, 16 jury- . . . mistrials.” Pet. at 5. 17 3. “Framing, setups by corrupt public officials who want to look 18 good in court like Johnny Cochran or something[.] Jury deliberation took less 19 than an hour that day trial ended because of negligent uncaring people on the 20 jury- due to framing, falsification of information in official documents on 21 record, misinterpretation of law, misstates & misconstrued facts manipulation 22 of criminal justice system.” Pet. at 6. 23 4. “That’s enough for now. I’ll save the rest for when people start 24 conspiring to form rebuttals . . . . Real criminals are people who create the law 25 intentionally, knowingly, willingly & unlawfully. I’m not a real criminal. I’m 26 being held in prison illegally and it’s an urgent emergency situation[.] I’m 27 declaring war on corruption[.] This case needs publicity exploitation because 28 I’m going to the President with it.” Pet. at 6. 1 5. “Victimization of & by circumstance. Happenstance situations . . . 2 on a daily basis. Things which are cannot control, such as the environment are 3 is . . . in against their will. Fate is random . . . of events, that which an 4 individual has no control circumstantially, out of their power to control.” Pet. 5 at 6. 6 III. 7 DISCUSSION 8 District courts are required to “promptly examine” all federal habeas 9 petitions brought under 28 U.S.C. § 2254 and, “[i]f it plainly appears from the 10 petition . . . that the petitioner is not entitled to relief,” the “judge must dismiss 11 the petition[.]” Habeas Rule 4; Mayle v. Felix, 545 U.S. 644, 656 (2005). Here, 12 the Petition suffers from several defects. 13 A. The Petition is Vague and Conclusory 14 As an initial matter, the Petition is confusing and largely unintelligible. 15 Petitioner purports to be challenging three different convictions, a prison 16 disciplinary violation, parole problems, and some other unspecified issue. Pet. 17 at 2. He facially asserts five grounds for relief, but the bases for these claims are 18 unclear. For instance, in Ground One, Petitioner alleges “[v]iolation of federal 19 constitutional rights. It’s that simple[.] I’m being wronged in the CDCR and by 20 the people of USA.” Pet. at 5. The supporting facts section states, in its 21 entirety, “Self-defense, self-preservation. That should speak volumes & say 22 enough, for starters. I’m being denied true justice, bre.” Id. 23 The Habeas Rules require a statement of all grounds for relief and the 24 facts supporting each ground, and the petition should state facts that point to a 25 real possibility of constitutional error and show the relationship of the facts to 26 the claim. See Habeas Rule 2(c); Habeas Rule 4, Advisory Committee Notes, 27 1976 Adoption; Felix, 545 U.S. at 655; O’Bremski v. Maass, 915 F.2d 418, 420 28 (9th Cir. 1990) (as amended). Allegations in a petition that are vague, 1 conclusory, palpably incredible, or unsupported by a statement of specific 2 facts, are insufficient to warrant relief, and are subject to summary dismissal. 3 See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 4 F.3d 20, 26 (9th Cir. 1994); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 5 1990). The Petition falls far short of the minimal clarity required to proceed. 6 Petitioner was advised of these requirements in the Prior Action (see Prior 7 Action, Dkt. 4 at 3 & Dkt. 5 at 3), but the current Petition nevertheless fails to 8 present claims in a coherent fashion and is disjointed, vague, and conclusory. 9 B. The Petition is Facially Untimely 10 District courts are permitted to consider, sua sponte, whether a petition 11 is untimely and to dismiss a petition that is untimely on its face after providing 12 the petitioner with the opportunity to be heard. Day v. McDonough, 547 U.S. 13 198, 209-10 (2006); Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012). 14 Here, at a minimum, Petitioner appears to challenge his 2017 Riverside 15 County Superior Court conviction in Case No. SWF1501433. However, to the 16 extent he is challenging that conviction, the Petition appears untimely. 17 Because the Petition was filed after the effective date of the Antiterrorism 18 and Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the 19 AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). 20 See Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). Ordinarily, the 21 limitations period runs from the date on which the prisoner’s judgment of 22 conviction “became final by the conclusion of direct review or the expiration of 23 the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner does 24 not appear to contend that he is entitled to a later trigger date under 28 U.S.C. 25 § 2244(d)(1)(B)-(D), and the Court finds no basis for applying a later trigger 26 date. As such, Section 2244(d)(1)(A) governs in this case. 27 On May 11, 2017, a Riverside County Superior Court jury found 28 Petitioner guilty of first degree murder, attempted premeditated and deliberate 1 murder, and assault with a deadly weapon. The jury also found true various 2 sentence enhancement allegations. Petitioner was sentenced to an 3 indeterminate term of 32 years to life, plus a determinate term of one year in 4 state prison. Riverside County Superior Court at https://public- 5 access.riverside.courts.ca.gov;2 People v. Thomas, 2019 WL 5418285, at *1 6 (Cal. Ct. App. Oct. 23, 2019). 7 Petitioner appealed his conviction and sentence to the California Court 8 of Appeal. In an unpublished decision issued on October 23, 2019, the court of 9 appeal remanded the case to the trial court “for the limited purpose of giving 10 the parties an opportunity to supplement the record with information relevant 11 to [Petitioner’s] youth offender parole hearing” in accordance with People v. 12 Franklin, 63 Cal. 4th 261 (2016) (as modified) and to correct the abstract of 13 judgment.3 In all other respects, the judgment was affirmed. Thomas, 2019 14 WL 5418285, at *11. Petitioner’s subsequent Petition for Review was denied 15 on January 2, 2020. Appellate Courts Case Information (“Appellate Courts”) 16 at https://appellatecases.courtinfo.ca.gov. 17 As it does not appear Petitioner filed a petition for a writ of certiorari, his 18 conviction became final 150 days later, on June 1, 2020, when the temporarily 19 extended deadline to file a petition for a writ of certiorari with the Supreme 20 Court expired. See Sup. Ct. R. 13.1 (requiring a petition for a writ of certiorari 21 be filed within 90 days after entry of a state court judgment or an order 22

23 2 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of Petitioner’s state court records available electronically. See Holder v. Holder, 305 F.3d 854, 866 24 (9th Cir. 2002); United States ex rel. Robinson Rancheria Citizens Council v. 25 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 3 “[A] Franklin proceeding is unrelated to the validity of the defendant’s 26 sentence. Neither the entitlement to a youth offender parole hearing, nor the 27 evidence preservation process ‘disturb[s] the finality of state convictions.’” In re Cook, 7 Cal. 5th 439, 451 (2019) (second alteration in original) (quoting 28 Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (as revised)). 1 declining discretionary review by a state court of last resort); Miscellaneous 2 Order, 589 U.S. – (March 19, 2020) (ordering “the deadline to file any petition 3 for a writ of certiorari due on or after the date of this order is extended to 150 4 days from the date of the lower court judgment, order denying discretionary 5 review, or order denying a timely petition for rehearing”); Harris v. Carter, 515 6 F.3d 1051, 1053 n.1 (9th Cir. 2008); Bowen v. Roe, 188 F.3d 1157, 1158-59 7 (9th Cir. 1999). The AEDPA’s one-year limitations period expired one year 8 later on June 1, 2021. As noted, Petitioner did not constructively file his 9 Petition until November 7, 2021. Thus, absent tolling, the Petition appears 10 untimely. 11 The burden of demonstrating that the AEDPA’s one-year limitations 12 period was sufficiently tolled, whether statutorily or equitably, rests with the 13 petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Zepeda v. 14 Walker, 581 F.3d 1013, 1019 (9th Cir. 2009); Miranda v. Castro, 292 F.3d 15 1063, 1065 (9th Cir. 2002). “A habeas petitioner is entitled to statutory tolling 16 of AEDPA’s one-year statute of limitations while a ‘properly filed application 17 for State post-conviction or other collateral review with respect to the pertinent 18 judgment or claim is pending.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th 19 Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). However, the filing of a federal 20 habeas petition does not toll the statute of limitations. Duncan v. Walker, 533 21 U.S. 167, 181-82 (2001). Here, Petitioner does not appear to be entitled to any 22 statutory tolling of the limitations period under 28 U.S.C. § 2244(d)(2) as it 23 appears he did not file any habeas petitions in state court. 24 In addition to statutory tolling, the AEDPA’s one-year limitations period 25 also is subject to equitable tolling in appropriate cases. See Holland v. Florida, 26 560 U.S. 631, 649 (2010). In order to be entitled to equitable tolling, the 27 petitioner must show both that: (1) “he has been pursuing his rights diligently”; 28 and (2) “‘some extraordinary circumstance stood in his way’ and prevented 1 timely filing.” Id. (quoting Pace, 544 U.S. at 418). The “threshold necessary to 2 trigger equitable tolling [under the AEDPA] is very high, lest the exceptions 3 swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citation 4 omitted). Here, Petitioner does not claim entitlement to equitable tolling and 5 the Court has not found any basis to support such a claim. Thus, equitable 6 tolling does not appear to render the Petition timely. 7 C. The Petition is Mixed or Wholly Unexhausted 8 Third, under 28 U.S.C. § 2254(b), federal habeas relief may not be 9 granted unless the petitioner has exhausted the remedies available in state 10 courts or an exception to the exhaustion requirement applies. Exhaustion 11 requires that the petitioner’s claims be fairly presented to the state courts and 12 be disposed of on the merits by the highest court of the state. James, 24 F.3d at 13 24; Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. 14 Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly 15 presented to a state court unless the petitioner has described both the operative 16 facts and the federal legal theory on which the claim is based. See Duncan v. 17 Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 18 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011). As 19 a matter of comity, a federal court will not entertain a habeas corpus petition 20 unless the petitioner has exhausted the available state judicial remedies on 21 every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518- 22 22 (1982). Petitioner has the burden of demonstrating that he has exhausted his 23 available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 24 (9th Cir. 1972) (per curiam). 25 Here, Petitioner acknowledges Grounds One and Two are unexhausted. 26 Pet. at 5-6. As to the remaining grounds, Petitioner contends he raised these 27 claims in a habeas petition filed in the California Supreme Court. See id. at 6- 28 7. However, a review of the state supreme court’s online docket reflects that 1 Petitioner has not sought habeas relief in the California Supreme Court. See 2 Appellate Courts. Thus, it appears two or more of Petitioner’s claims are 3 unexhausted, rendering the Petition “mixed” or wholly unexhausted, and 4 subject to dismissal for this additional reason. 5 D. Petitioner May Not Pursue Civil Rights Claims in this Action 6 Fourth, it appears that Petitioner may be seeking to pursue one or more 7 civil rights claims in this action. As noted, in Ground One, Petitioner alleges 8 he is “being wronged in the CDCR,” and elsewhere he states, “This is a huge 9 civil class-action federal lawsuit,” “worth millions of dollars. I’ve been 10 brutalized in here.” Pet. at 5, 8. To the extent Petitioner seeks to pursue any 11 civil rights claims, a federal habeas petition is not the appropriate vehicle for 12 doing so. 13 Federal law opens two main avenues to relief on complaints related to 14 imprisonment: a petition for habeas corpus and a civil rights complaint. See 15 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Challenges to the 16 validity of any confinement or to particulars affecting its duration fall within 17 the “core” of habeas corpus. Hill v. McDonough, 547 U.S. 573, 579 (2006); 18 Nelson v. Campbell, 541 U.S. 637, 643 (2004). “By contrast, constitutional 19 claims that merely challenge the conditions of prisoner’s confinement, whether 20 the inmate seeks monetary or injunctive relief, fall outside of that core and may 21 be brought pursuant to § 1983 in the first instance.” Nelson, 541 U.S. at 643; 22 Hill, 547 U.S. at 579; Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en 23 banc) (concluding that “a § 1983 action is the exclusive vehicle for claims 24 brought by state prisoners that are not within the core of habeas corpus”). 25 Thus, if success on a habeas petitioner’s claim would not necessarily lead to his 26 immediate or earlier release from confinement, the claim does not fall within 27 “the core of habeas corpus” and thus, must be pursued, if at all, under 42 28 U.S.C. § 1983. Nettles, 830 F.3d at 935 (quoting Skinner v. Switzer, 562 U.S. 1 521, 535 n.13 (2011)); see also Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2 2003). 3 Here, although it is not entirely clear, it appears that Petitioner is seeking 4 to pursue claims based on conditions of confinement at Kern Valley State 5 Prison (the “Prison”), where he is currently incarcerated. Success on these 6 claims would not result in an immediate or speedier release from custody. See 7 Nettles, 830 F.3d at 933 (explaining that “prisoners may not challenge mere 8 conditions of confinement in habeas corpus”); Stephens v. Cty. of San 9 Bernardino, 2019 WL 1412123, at *1 (C.D. Cal. Feb. 20, 2019) (concluding 10 that conditions of confinement claims must be brought in Section 1983 action 11 regardless of the petitioner’s request for release from custody), report and 12 recommendation accepted by 2019 WL 1406954 (C.D. Cal. Mar. 27, 2019); 13 Crane v. Beard, 2017 WL 1234096, at *4 (C.D. Cal. Apr. 3, 2017) (finding that 14 claims challenging the petitioner’s conditions of confinement were not 15 cognizable on federal habeas review). As such, to the extent Petitioner is 16 challenging the conditions of his confinement, such claims do not fall within 17 “the core of habeas corpus” and Petitioner must instead pursue these claims, if 18 at all, in a Section 1983 action. Petitioner appears to concede as much as he 19 also filed a civil rights action in this Court related to conduct at the Prison. As 20 the Court explained in its order transferring this action, venue properly lies in 21 the Eastern District of California, where the Prison is located. See Thomas v. 22 Kern Valley State Prison, et al., Case No. 5:21-cv-01913-CJC-JDE (C.D. Cal.), 23 Dkt. 5. 24 E. Petitioner’s IFP Application is Incomplete 25 Fifth, Petitioner did not pay the $5 filing fee for a federal habeas petition 26 (see 28 U.S.C. § 1914(a)) and did not alternatively file a completed IFP 27 Application as required by 28 U.S.C. § 1915. The IFP Application filed with 28 the Petition was not signed by the authorized officer at the institution where 1 Petitioner is incarcerated, and did not include a certified copy of Petitioner’s 2 prisoner trust account or institutional equivalent for the six months 3 immediately preceding the filing of the Petition as required by statute. 28 4 U.S.C. § 1915(a)(2). Petitioner was previously advised of this requirement in 5 the Prior Action (see Prior Action Dkt. 4 at 5-6), but again, Petitioner has filed 6 an incomplete IFP Application, which cannot be granted. The Clerk is directed 7 to send Petitioner a form IFP Application by a person in custody, which 8 Petitioner is required to prepare in full, and obtain any necessary information 9 and certification from staff at the facility where he is incarcerated if he wishes 10 to proceed without prepayment of the filing fee. 11 F. Petitioner’s Request for Appointment of Counsel 12 Finally, to the extent that Petitioner requests the appointment of counsel 13 or purports to “elect Joseph Rhea [of] Palm Springs” to act as his attorney, that 14 request is denied. See Pet. at 8. There is no constitutional right to counsel in 15 connection with a habeas petition. Bonin v. Vasquez, 999 F.2d 425, 429 (9th 16 Cir. 1993). The decision of whether to appoint counsel is within the Court’s 17 discretion based upon an evaluation of Petitioner’s likelihood of success on the 18 merits and his ability to articulate his claims pro se in light of the complexity of 19 the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 20 1983) (per curiam). 21 Having reviewed the Petition, based upon the current record, the Court 22 concludes that the appointment of counsel is not warranted at this time. As a 23 result, the request is DENIED. Nothing in this order prevents Petitioner from 24 retaining counsel. 25 IV. 26 CONCLUSION 27 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 28 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 1 || days from the date of this Order, why this action should not be dismissed 2 under Habeas Rule 4 for the reasons stated above. If Petitioner disputes that 3 ||this action is untimely, he must explain clearly and in detail why it is not 4 ||untimely, and provide any available competent evidence that establishes the 5 ||timeliness of this action. To the extent Petitioner contends he has exhausted 6 || his state court remedies, Petitioner is directed to provide information regarding 7 efforts to exhaust his claims in the state courts, and attach copies of any 8 ||documents establishing that his claims are indeed exhausted. 9 Instead of filing a response to the instant Order, Petitioner may request a 10 || voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 11 ||41(a). The Clerk is directed to provide a Notice of Dismissal form. However, 12 Court warns any dismissed claims may be subject to the statute of 13 || limitations under Section 2244(d)(1). 14 Petitioner is cautioned that a failure to respond timely in compliance 15 || with this Order may result in this action being dismissed for the foregoing 16 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 17 Fed. R. Civ. P. 41(b). 18 19 || Dated: November 23, 2021 20 i de 22 nited States Magistrate Judge 23 24 25 26 27 28 11