1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 WAYNE WEST, ) Case No. 2:21-cv-03727-CJC-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE ) 13 v. ) ) 14 CRAIG KOENIG, Warden, ) ) 15 Respondent. ) ) 16 ) 17 18 On April 19, 2021,1 Petitioner Wayne West (“Petitioner”) constructively 19 filed a Petition for Writ of Habeas Corpus by a Person in State Custody (Dkt. 20 1, “Petition” or “Pet.”) and a supporting Memorandum (Dkt. 2, “Mem.”), 21 raising a single ground for relief. The Court has screened the Petition 22 consistent with its authority under Rule 4 of the Rules Governing Section 2254 23 1 Under the “mailbox rule,” “a legal document is deemed filed on the date a 24 petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 25 F.3d 918, 921 (9th Cir. 2002). In the absence of evidence to the contrary, courts have treated a petition as delivered to prison authorities on the date the petition is signed. 26 See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Here, for purposes of 27 this Order, the Court will afford Petitioner the benefit of the mailbox rule and deems the Petition to have been “filed” on April 19, 2021. 28 1 Cases in the United States District Courts (“Habeas Rules”) and finds that the 2 Petition appears to suffer from at least two defects. The Court thus orders 3 Petitioner to show cause why this action should not be dismissed. 4 I. 5 PROCEDURAL HISTORY 6 On October 4, 2016, following a plea of nolo contendere in the Los 7 Angeles County Superior Court, case number BA444069, Petitioner was 8 convicted and sentenced to a term of 21 years in prison for robbery with the 9 use of a weapon. Pet. at 2 (CM/ECF pagination is used herein for references 10 to the Petition); Mem. at 6. 11 Petitioner states he did not appeal his judgment of conviction to the 12 California Court of Appeal. Pet. at 3. However, California Court of Appeal 13 records reflect that, in an unpublished decision issued on October 18, 2017, the 14 state court of appeal affirmed Petitioner’s conviction and sentence following an 15 independent review of the record under People v. Wende, 25 Cal.3d 436 16 (1979) after Petitioner’s court appointed counsel filed an opening brief raising 17 no issues and Petitioner submitted a brief raising several issues.2 California 18 Courts, Appellate Case Information (“Appellate Case Information”) at 19 appellatecases.courtinfo.ca.gov, Second Appellate District, Division Four, 20 Case Nos. B298616, BA444069. 21 22 2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial 23 notice of relevant state court records available electronically for the state courts. See 24 Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. Robinson Rancheria 25 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take 26 notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue” (citation 27 omitted)). 28 2 1 It does not appear Petitioner filed a timely Petition for Review of the 2 October 18, 2017 opinion affirming his conviction and sentence. See Pet. at 4 3 (reflecting that Petitioner did not answer the question whether he filed a 4 Petition for Review); Dkt. 2 at 6 (December 23, 2019 Order by the California 5 Court of Appeal reflecting “the matter in trial number BA444069 is final and 6 has been since 2017). 7 Barring a timely filing of a Petition for Review of the California Court of 8 Appeals decision affirming the judgment, Petitioner’s judgment became final 9 on November 27, 2017, 40 days after the order affirming his judgment of 10 conviction was filed. See Cal. R. Ct. 8.366(b)(1) (providing that court of appeal 11 decision becomes final 30 days after filing); Cal. R. Ct. 8.500(e)(1) (providing 12 that a Petition for Review must be served and filed within 10 days of a court of 13 appeal decision becoming final). Petitioner asserts he did not file any habeas 14 petitions in state court with respect to his judgment of conviction. See Pet. at 4. 15 II. 16 PETITIONER’S CLAIM 17 The sole claim raised in the Petition is Petitioner’s assertion that the state 18 courts denied his March 19, 2019 motion for modification of his sentence 19 under California Senate Bill 1393 (“SB 1393”), which, according to Petitioner, 20 became effective on January 1, 2019, and gave California trial courts the 21 discretion to dismiss sentencing enhancements based upon prior convictions 22 for serious felonies. See Pet. at 6; Mem. at 1-4. 23 II. 24 DISCUSSION 25 Under Rule 4 of the Habeas Rules, the Court must review the Petition 26 and, if it plainly appears from the Petition and any attached exhibits that the 27 Petitioner is not entitled to relief, the Court must dismiss the Petition. Here, 28 3 1 the Petition appears subject to dismissal for two reasons: (1) the sole claim 2 raised in the Petition appears to be non-cognizable on federal habeas review; 3 and (2) the Petition appears to be untimely. The Petition therefore appears to 4 be subject to dismissal under Rule 4. 5 A. The Petition’s Sole Claim Appears to Be Non-Cognizable 6 The Petition appears subject to dismissal as non-cognizable as the only 7 underlying claim is based solely on an alleged violation of state law. “In 8 conducting habeas review, a federal court is limited to deciding whether a 9 conviction violated the Constitution, laws, or treaties of the United States.” 10 Estelle v. McGuire, 502 U.S. 62, 68 (1991); Smith v. Phillips, 455 U.S. 209, 11 221 (1982) (“A federally issued writ of habeas corpus, of course, reaches only 12 convictions obtained in violation of some provision of the United States 13 Constitution.”). Federal habeas relief is not available for errors of state law. 14 See 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. 15 Petitioner claims he did not receive a resentencing in violation of a new 16 state law. Petitioner cites only state law in support of his claim and identifies 17 no federal constitutional violation. Further, a claim that a failure to resentence 18 a petitioner under SB 1393 “does not state a claim for federal habeas relief.” 19 Bush v. Davis, 2020 WL 7043882, at *2 (N.D. Cal. Dec. 1, 2020); see also 20 Burchett v. Martel, 2020 WL 1847131, at *2, report and recommendation 21 adopted by 2020 WL 1820518 (C.D. Cal. Apr. 10, 2020) (petitioner's 22 allegations regarding S.B. 1393 involve an alleged misapplication of state law 23 and “[a]s such, they fail to state a cognizable federal claim.”); O'Neil v. 24 Burton, 2019 WL 6915690, at *2, report and recommendation adopted by 25 2020 WL 363352 (E.D. Cal. Jan. 22, 2020) (“petitioner's effort to obtain the 26 benefit of California Senate Bill 1393 implicates state law only,” and therefore 27 federal habeas relief is unavailable); McKinney v. Pfeiffer, 2019 WL 5686334, 28 4 1 at *3, report and recommendation adopted by 2019 WL 5683471 (C.D. Cal 2 Oct.
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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 WAYNE WEST, ) Case No. 2:21-cv-03727-CJC-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE ) 13 v. ) ) 14 CRAIG KOENIG, Warden, ) ) 15 Respondent. ) ) 16 ) 17 18 On April 19, 2021,1 Petitioner Wayne West (“Petitioner”) constructively 19 filed a Petition for Writ of Habeas Corpus by a Person in State Custody (Dkt. 20 1, “Petition” or “Pet.”) and a supporting Memorandum (Dkt. 2, “Mem.”), 21 raising a single ground for relief. The Court has screened the Petition 22 consistent with its authority under Rule 4 of the Rules Governing Section 2254 23 1 Under the “mailbox rule,” “a legal document is deemed filed on the date a 24 petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 25 F.3d 918, 921 (9th Cir. 2002). In the absence of evidence to the contrary, courts have treated a petition as delivered to prison authorities on the date the petition is signed. 26 See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Here, for purposes of 27 this Order, the Court will afford Petitioner the benefit of the mailbox rule and deems the Petition to have been “filed” on April 19, 2021. 28 1 Cases in the United States District Courts (“Habeas Rules”) and finds that the 2 Petition appears to suffer from at least two defects. The Court thus orders 3 Petitioner to show cause why this action should not be dismissed. 4 I. 5 PROCEDURAL HISTORY 6 On October 4, 2016, following a plea of nolo contendere in the Los 7 Angeles County Superior Court, case number BA444069, Petitioner was 8 convicted and sentenced to a term of 21 years in prison for robbery with the 9 use of a weapon. Pet. at 2 (CM/ECF pagination is used herein for references 10 to the Petition); Mem. at 6. 11 Petitioner states he did not appeal his judgment of conviction to the 12 California Court of Appeal. Pet. at 3. However, California Court of Appeal 13 records reflect that, in an unpublished decision issued on October 18, 2017, the 14 state court of appeal affirmed Petitioner’s conviction and sentence following an 15 independent review of the record under People v. Wende, 25 Cal.3d 436 16 (1979) after Petitioner’s court appointed counsel filed an opening brief raising 17 no issues and Petitioner submitted a brief raising several issues.2 California 18 Courts, Appellate Case Information (“Appellate Case Information”) at 19 appellatecases.courtinfo.ca.gov, Second Appellate District, Division Four, 20 Case Nos. B298616, BA444069. 21 22 2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial 23 notice of relevant state court records available electronically for the state courts. See 24 Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. Robinson Rancheria 25 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take 26 notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue” (citation 27 omitted)). 28 2 1 It does not appear Petitioner filed a timely Petition for Review of the 2 October 18, 2017 opinion affirming his conviction and sentence. See Pet. at 4 3 (reflecting that Petitioner did not answer the question whether he filed a 4 Petition for Review); Dkt. 2 at 6 (December 23, 2019 Order by the California 5 Court of Appeal reflecting “the matter in trial number BA444069 is final and 6 has been since 2017). 7 Barring a timely filing of a Petition for Review of the California Court of 8 Appeals decision affirming the judgment, Petitioner’s judgment became final 9 on November 27, 2017, 40 days after the order affirming his judgment of 10 conviction was filed. See Cal. R. Ct. 8.366(b)(1) (providing that court of appeal 11 decision becomes final 30 days after filing); Cal. R. Ct. 8.500(e)(1) (providing 12 that a Petition for Review must be served and filed within 10 days of a court of 13 appeal decision becoming final). Petitioner asserts he did not file any habeas 14 petitions in state court with respect to his judgment of conviction. See Pet. at 4. 15 II. 16 PETITIONER’S CLAIM 17 The sole claim raised in the Petition is Petitioner’s assertion that the state 18 courts denied his March 19, 2019 motion for modification of his sentence 19 under California Senate Bill 1393 (“SB 1393”), which, according to Petitioner, 20 became effective on January 1, 2019, and gave California trial courts the 21 discretion to dismiss sentencing enhancements based upon prior convictions 22 for serious felonies. See Pet. at 6; Mem. at 1-4. 23 II. 24 DISCUSSION 25 Under Rule 4 of the Habeas Rules, the Court must review the Petition 26 and, if it plainly appears from the Petition and any attached exhibits that the 27 Petitioner is not entitled to relief, the Court must dismiss the Petition. Here, 28 3 1 the Petition appears subject to dismissal for two reasons: (1) the sole claim 2 raised in the Petition appears to be non-cognizable on federal habeas review; 3 and (2) the Petition appears to be untimely. The Petition therefore appears to 4 be subject to dismissal under Rule 4. 5 A. The Petition’s Sole Claim Appears to Be Non-Cognizable 6 The Petition appears subject to dismissal as non-cognizable as the only 7 underlying claim is based solely on an alleged violation of state law. “In 8 conducting habeas review, a federal court is limited to deciding whether a 9 conviction violated the Constitution, laws, or treaties of the United States.” 10 Estelle v. McGuire, 502 U.S. 62, 68 (1991); Smith v. Phillips, 455 U.S. 209, 11 221 (1982) (“A federally issued writ of habeas corpus, of course, reaches only 12 convictions obtained in violation of some provision of the United States 13 Constitution.”). Federal habeas relief is not available for errors of state law. 14 See 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. 15 Petitioner claims he did not receive a resentencing in violation of a new 16 state law. Petitioner cites only state law in support of his claim and identifies 17 no federal constitutional violation. Further, a claim that a failure to resentence 18 a petitioner under SB 1393 “does not state a claim for federal habeas relief.” 19 Bush v. Davis, 2020 WL 7043882, at *2 (N.D. Cal. Dec. 1, 2020); see also 20 Burchett v. Martel, 2020 WL 1847131, at *2, report and recommendation 21 adopted by 2020 WL 1820518 (C.D. Cal. Apr. 10, 2020) (petitioner's 22 allegations regarding S.B. 1393 involve an alleged misapplication of state law 23 and “[a]s such, they fail to state a cognizable federal claim.”); O'Neil v. 24 Burton, 2019 WL 6915690, at *2, report and recommendation adopted by 25 2020 WL 363352 (E.D. Cal. Jan. 22, 2020) (“petitioner's effort to obtain the 26 benefit of California Senate Bill 1393 implicates state law only,” and therefore 27 federal habeas relief is unavailable); McKinney v. Pfeiffer, 2019 WL 5686334, 28 4 1 at *3, report and recommendation adopted by 2019 WL 5683471 (C.D. Cal 2 Oct. 24, 2019) (petitioner's citation to SB 1393 is a state law claim for relief and 3 therefore is excluded from federal habeas review). Accordingly, it appears the 4 sole ground for relief asserted in the Petition is not cognizable on federal 5 habeas review and subject to summary dismissal. 6 C. The Petition Appears Untimely 7 Because the Petition was filed after the effective date of the Antiterrorism and 8 Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the 9 AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). 10 See Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). Ordinarily, the 11 limitations period runs from the date on which the prisoner’s judgment of 12 conviction “became final by conclusion of direct review or the expiration of the 13 time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 14 Petitioner does not appear to contend that he is entitled to a late trigger 15 date to delay the commencement of the running of the limitations period under 16 28 U.S.C. § 2244(d)(1)(B) or (D), and the Court finds no basis for a late trigger 17 date under those subsections. To the extent Petitioner may contend, based on 18 the January 1, 2019 effective date of SB 1393, that he is entitled to a later start 19 date of the statute of limitations under 28 U.S.C. § 2244(d)(1)(C), which 20 provides that the one-year statute of limitations begins to run on the date the 21 Supreme Court recognizes a new constitutional right that has been made 22 retroactive on collateral review, the Court is aware of no United States 23 Supreme Court authority holding that the provisions of Senate Bill 1393 apply 24 retroactively on collateral review. Thus, Section 2244(d)(1)(C) does not 25 provide a late trigger date here. See Callendret v. Pfeiffer, 2020 WL 5370616, 26 at *4 (C.D. Cal. July 16, 2020). Thus, as no basis to apply a later trigger date 27 appears, Section 2244(d)(1)(A) governs in this case. 28 5 1 As explained, as Petitioner does not appear to have filed a Petition for 2 Review of the California Court of Appeal’s decision affirming his conviction 3 and sentence, the judgment became final 30 days’ after the issuance of the 4 court of appeal’s decision, that is, on November 27, 2017. The AEDPA’s one- 5 year limitations period expired one year later on November 27, 2018. 6 Petitioner did not constructively file his Petition until April 19, 2021. Thus, 7 absent tolling, the Petition is untimely by more than two years. 8 1. Statutory tolling does not appear to render the Petition timely. 9 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year 10 statute of limitations while a ‘properly filed application for State post- 11 conviction or other collateral review with respect to the pertinent judgment or 12 claim is pending.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012) 13 (quoting 28 U.S.C. § 2244(d)(2)). Statutory tolling does not extend to the time 14 between the date a judgment becomes final and the date the petitioner files his 15 first state collateral challenge because during that time there is no case 16 “pending.” See Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012). 17 Once the limitations period lapsed, it could not be reinitiated. See 18 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) 19 does not permit the reinitiation of the limitations period that has ended before 20 the state petition was filed”). 21 The burden of demonstrating that the AEDPA’s one-year limitations 22 period was sufficiently tolled, whether statutorily or equitably, rests with the 23 petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Zepeda v. 24 Walker, 581 F.3d 1013, 1019 (9th Cir. 2009); Miranda v. Castro, 292 F.3d 25 1063, 1065 (9th Cir. 2002). 26 Here, Petitioner states he did not file filed a state habeas petition as to his 27 judgment of conviction. Pet. at 4 (CM/ECF pagination). To the extent 28 6 1 Petitioner refers to state court proceedings that commenced after November 2 27, 2018 (see Mem. at 3-5 (CM/ECF pagination)), because, as noted above, 3 the limitations period appears to have already lapsed by that time, such 4 proceedings do operate to reinitiate tolling. See Ferguson, 321 F.3d at 823. 5 Thus, Petitioner does not appear to be entitled to any statutory tolling. 6 2. Equitable tolling does not appear to render the Petition 7 timely. 8 In addition to statutory tolling, the AEDPA’s one-year limitations period 9 also is subject to equitable tolling in appropriate cases. See Holland v. Florida, 10 560 U.S. 631, 649 (2010). In order to be entitled to equitable tolling, the 11 petitioner must show both that: (1) he has been pursuing his rights diligently; 12 and (2) some extraordinary circumstance stood in his way and prevented his 13 timely filing. Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The 14 Ninth Circuit has held that the Pace standard is consistent with the Ninth 15 Circuit’s “sparing application of the doctrine of equitable tolling.” Waldron- 16 Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). “The petitioner 17 must show that ‘the extraordinary circumstances were the cause of his 18 untimeliness and that the extraordinary circumstances made it impossible to 19 file a petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010) (as 20 amended) (quoting Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). 21 Here, Petitioner does not claim entitlement to equitable tolling and the 22 Court has not found any basis to support such a claim. Thus, equitable tolling 23 does not render the Petition timely. 24 III. 25 ORDER 26 Accordingly, the Petition appears to be non-cognizable and untimely. 27 District courts are permitted to consider, sua sponte, whether a petition is 28 7 1 || untimely and to dismiss a petition that is untimely on its face after providing 2 || the petitioner with the opportunity to be heard. Day v. McDonough, 547 U.S. 3 || 198, 209-10 (2006); Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012). 4 Therefore, Petitioner is ORDERED TO SHOW CAUSE why this action 5 ||should not be dismissed as untimely. By June 11, 2021, Petitioner shall file a 6 || written response to this Order. If Petitioner contends that the Petition seeks 7 ||cognizable relief, he must provide all evidence, argument, and authority in 8 ||support of such position. If Petitioner asserts that the action was timely filed, 9 || he must explain clearly and in detail why it is not untimely, and provide any 10 ||available competent evidence that establishes the timeliness of this action, 11 |/including any evidence in support of any claim of tolling. 12 The Court warns Petitioner that failure to timely file a response to this 13 || Order may result in the Court dismissing this action with prejudice as untimely 14 for failure to prosecute and comply with court orders. See Fed. R. Civ. P. 15 ||41(b). 16 17 || Dated: May 12, 2021 18 if 19 Lh Ke cs 20 ND. EARLY nited States Magistrate Judge 21 22 23 24 25 26 27 28