1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 MALCOLM D. HANSON, ) No. 2:23-cv-03112-JGB-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THE PETITION SHOULD NOT ) 14 TAMMY CAMPBELL, Warden, ) BE DISMISSED ) ) 15 Respondent. ) ) 16

17 I. 18 INTRODUCTION 19 On March 27, 2023,1 Malcolm D. Hanson (“Petitioner”), a state 20 prisoner, proceeding pro se and without paying the required filing fee or 21 seeking leave to proceed in forma pauperis, constructively filed a Petition for 22 Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254. 23 Dkt. 1 (“Pet.” or “Petition”). 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. Here, the Court will afford Petitioner the benefit of the mailbox rule and deems the 28 Petition constructively filed on the signature date for purposes of this Order. 1 This appears to be the third habeas petition that Petitioner has filed in 2 this Court challenging his 1999 conviction in Ventura County Superior Court 3 (“Prior Conviction”). The first habeas petition was dismissed without prejudice 4 as partially unexhausted on December 21, 2001. See Hanson v. Giurbino, Case 5 No. 2:01-cv-05353-GLT-RZ, (C.D. Cal.) (“First Petition”), Dkt. 17-19.2 6 Petitioner filed a second habeas petition in this Court on June 14, 2016, 7 challenging both his Prior Conviction and a 2014 resentencing proceeding. See 8 Hanson v. Baughman, Case No. 2:16-cv-04250-JGB-JDE, (C.D. Cal.) 9 (“Second Petition”), Dkt. 1. That petition was denied and dismissed with 10 prejudice on October 3, 2017. Id. Dkt. 18, 21-22. 11 In accordance with Rule 4 of the Rules Governing Section 2254 Cases in 12 the United States District Courts (“Habeas Rules”), the Court has reviewed the 13 instant Petition and finds it appears to suffer from several defects, rendering it 14 subject to dismissal. 15 II. 16 PETITIONER’S CLAIMS 17 1. Petitioner’s conviction must be overturned because his admission 18 to the prior conviction allegations was not voluntarily and knowingly made. 19 Pet. at 4-6, 16 (CM/ECF pagination). 20 2. Petitioner received ineffective assistance of counsel. Pet. at 4. 21 3. “Vindictive Prosecution” based on Petitioner’s “plea agreement” 22 regarding the prior conviction allegations. Pet. at 7. 23

24 2 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of Petitioner’s 25 prior actions filed in state and federal courts. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed 26 matters of public record, which may include court records available through [the 27 Public Access to Court Electronic Records].”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another 28 proceeding). 1 III. 2 DISCUSSION 3 Pursuant to Rule 4 of the Habeas Rules, the Court must review the 4 Petition and, if it plainly appears from the Petition and any attached exhibits 5 that Petitioner is not entitled to relief, the Court must dismiss the Petition. 6 Here, the Petition appears subject to dismissal for at least four reasons: (1) it is 7 second and/or successive; (2) it is untimely; (3) it was filed on the wrong form; 8 and (4) it is potentially mixed or wholly unexhausted. 9 A. The Petition Appears Second And/or Successive 10 The Antiterrorism and Effective Death Penalty Act of 1996 (the 11 “AEDPA”) “greatly restricts the power of federal courts to award relief to state 12 prisoners who file second or successive habeas corpus applications.” Tyler v. 13 Cain, 533 U.S. 656, 661 (2001). Title 28, United States Code, Section 2244(b) 14 provides, in pertinent part, as follows: 15 (1) A claim presented in a second or successive habeas 16 corpus application under section 2254 that was presented in a prior 17 application shall be dismissed. 18 (2) A claim presented in a second or successive habeas 19 corpus application under section 2254 that was not presented in a 20 prior application shall be dismissed unless– 21 (A) the applicant shows that the claim relies on a new 22 rule of constitutional law, made retroactive to cases on 23 collateral review by the Supreme Court, that was previously 24 unavailable; or 25 (B)(i) the factual predicate for the claim could not have 26 been discovered previously through the exercise of due 27 diligence; and 28 (ii) the facts underlying the claim, if proven and 1 viewed in light of the evidence as a whole, would be 2 sufficient to establish by clear and convincing evidence that, 3 but for constitutional error, no reasonable factfinder would 4 have found the applicant guilty of the underlying offense. 5 (3)(A) Before a second or successive application permitted 6 by this section is filed in the district court, the applicant shall move 7 in the appropriate court of appeals for an order authorizing the 8 district court to consider the application. 9 A petitioner’s failure to obtain authorization from the appropriate 10 appellate court before filing a second or successive habeas petition deprives the 11 district court of jurisdiction to consider the petition. See Burton v. Stewart, 549 12 U.S. 147, 157 (2007) (per curiam); Cooper v. Calderon, 274 F.3d 1270, 1274 13 (9th Cir. 2001) (per curiam). 14 Here, Petitioner’s claims challenge the validity of his Prior Conviction. 15 As noted, however, Petitioner previously challenged the same conviction in a 16 prior habeas corpus petition filed in this Court, which was adjudicated on the 17 merits. In the Second Petition,3 Petitioner primarily challenged the 2014 18 resentencing proceedings, but also raised two claims that appeared to relate to 19 his Prior Conviction. See Second Petition, Dkt. 1 at 6, 23-26 (CM/ECF 20 pagination). In analyzing these grounds for relief, the undersigned initially 21 noted that these claims implicated timeliness concerns, but ultimately 22 concluded it was unnecessary to resolve that issue because the claims 23 substantively did not support federal habeas relief. Id., Dkt. 18 at 26-28. On 24

25 3 The First Petition does not implicate Section 2244(b)’s filing restrictions because it was dismissed without prejudice for failure to exhaust state remedies. See 26 Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the 27 district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive 28 petition.”); In re Turner, 101 F.3d 1323, 1323 (9th Cir. 1997) (as amended). 1 October 3, 2017, the district court entered judgment on the Second Petition, 2 denying the petition and dismissing the action with prejudice. Id., Dkt. 22. 3 Both the district court and Ninth Circuit Court of Appeals denied a certificate 4 of appealability. Id., Dkt. 20, 26-27. 5 Thus, the Petition now pending appears to constitute a second and/or 6 successive petition challenging the same Prior Conviction and as such, 7 Petitioner must obtain permission from the Ninth Circuit before this Court can 8 adjudicate the issues raised by the Petition. Petitioner did not include a copy of 9 an order by the Ninth Circuit authorizing this Court to consider the Petition 10 and the Court has not independently been able to locate any such order in a 11 search of online records of the Ninth Circuit. Absent such authorization, it 12 appears the Court lacks jurisdiction to adjudicate Petitioner’s claims 13 challenging his Prior Conviction. 14 B. The Petition Appears Facially Untimely 15 District courts are permitted to consider, sua sponte, whether a petition 16 is untimely and to dismiss a petition that is untimely on its face after providing 17 the petitioner with the opportunity to be heard. Day v. McDonough, 547 U.S. 18 198, 209-10 (2006); Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012). In 19 addition to being second and/or successive, the Petition appears untimely. 20 Because the Petition was filed after the AEDPA, it is subject to the 21 AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). 22 See Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). Ordinarily, the 23 limitations period runs from the date on which the prisoner’s judgment of 24 conviction “became final by the conclusion of direct review or the expiration of 25 the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner does 26 not appear to contend that he is entitled to a later trigger date under 28 U.S.C. 27 § 2244(d)(1)(B)-(D), and the Court finds no basis for applying a later trigger 28 date. As such, Section 2244(d)(1)(A) governs in this case. 1 On December 18, 1998, a Ventura County Superior Court jury found 2 Petitioner guilty of assault with a deadly weapon by means likely to produce 3 great bodily injury and battery with serious bodily injury. Petitioner admitted 4 to suffering two prior serious felony convictions and serving two prior prison 5 terms. On March 11, 1999, the trial court sentenced Petitioner to 25 years to 6 life. Pet. at 16-17; Second Petition, Dkt. 1 at 2; id., Dkt. 18 at 2-3. 7 Petitioner appealed his conviction and on April 3, 2000, the California 8 Court of Appeal denied the appeal. Petitioner’s Petition for Review was denied 9 on June 14, 2000. Second Action, Dkt. 1 at 2-3; id., Dkt.18 at 3. As it appears 10 Petitioner did not file a petition for writ of certiorari (Pet. at 2), his conviction 11 became final 90 days later, on September 12, 2000, when the period in which 12 to petition the United States Supreme Court for a writ of certiorari expired. See 13 Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir. 2008); Bowen v. Roe, 188 14 F.3d 1157, 1158-59 (9th Cir. 1999). The AEDPA’s one-year limitations period 15 expired one year later on September 12, 2001. As noted, Petitioner did not 16 constructively file the instant Petition until March 27, 2023, more than twenty 17 years after the expiration of the limitations period. Thus, absent tolling, the 18 Petition appears untimely. 19 The burden of demonstrating that the AEDPA’s one-year limitations 20 period was sufficiently tolled, whether statutorily or equitably, rests with the 21 petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Zepeda v. 22 Walker, 581 F.3d 1013, 1019 (9th Cir. 2009); Miranda v. Castro, 292 F.3d 23 1063, 1065 (9th Cir. 2002). “A habeas petitioner is entitled to statutory tolling 24 of AEDPA’s one-year statute of limitations while a ‘properly filed application 25 for State post-conviction or other collateral review with respect to the pertinent 26 judgment or claim is pending.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th 27 Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). Here, Petitioner does not appear 28 to be entitled to any statutory tolling of the limitations period under 28 U.S.C. 1 § 2244(d)(2) as it appears he did not file any habeas petitions in state court 2 prior to the expiration of the limitations period. See Pet. at 2. 3 In addition to statutory tolling, the AEDPA’s one-year limitations period 4 also is subject to equitable tolling in appropriate cases. See Holland v. Florida, 5 560 U.S. 631, 649 (2010). In order to be entitled to equitable tolling, the 6 petitioner must show both that: (1) “he has been pursuing his rights diligently”; 7 and (2) “‘some extraordinary circumstance stood in his way’ and prevented 8 timely filing.” Id. (quoting Pace, 544 U.S. at 418). The “threshold necessary to 9 trigger equitable tolling [under the AEDPA] is very high, lest the exceptions 10 swallow the rule.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citation 11 omitted). Here, Petitioner does not claim entitlement to equitable tolling and 12 the Court has not found any basis to support such a claim. Thus, equitable 13 tolling does not appear to render the Petition timely. 14 C. Other Defects 15 The Petition was not submitted on a form approved by this district. Rule 16 2(d) of the Habeas Rules authorizes district courts to require habeas petitions 17 be filed in a form prescribed by the Local Rules. This Court has such a Local 18 Rule. See Local Rule 83-16.1 (“A petition for writ of habeas corpus . . . shall be 19 submitted on the forms approved and supplied by the Court.”). The Petition is 20 subject to dismissal for failure to use a Court-approved form. 21 Separately, under 28 U.S.C. § 2254(b), federal habeas relief may not be 22 granted unless the petitioner has exhausted the remedies available in state 23 courts or an exception to the exhaustion requirement applies. Exhaustion 24 requires that the petitioner’s claims be fairly presented to the state courts and 25 be disposed of on the merits by the highest court of the state. James v. Borg, 24 26 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 27 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A 28 claim has not been fairly presented to a state court unless the petitioner has 1 described both the operative facts and the federal legal theory on which the 2 claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per 3 curiam); Picard v. Connor, 404 U.S. 270, 275-78 (1971); Greenway v. Schriro, 4 653 F.3d 790, 801 (9th Cir. 2011). As a matter of comity, a federal court will 5 not entertain a habeas corpus petition unless the petitioner has exhausted the 6 available state judicial remedies on every ground presented in the petition. See 7 Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Petitioner has the burden of 8 demonstrating that he has exhausted his available state remedies. See, e.g., 9 Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam). Here, 10 because Petitioner did not use an approved form that would require 11 information about exhaustion, the Court cannot determine whether his claims 12 have been exhausted, but notes that his response to Question No. 13 on the 13 form habeas petition suggests the Petition is either mixed or wholly 14 unexhausted. Specifically, in response to the question asking Petitioner to 15 identify any claims that have not been presented to any other courts and the 16 reasons for that failure, Petitioner responded, “Ineffective Assistance of 17 Counsel And Fraud.” Pet. at 7. 18 IV. 19 CONCLUSION AND ORDER 20 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 21 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 22 days from the date of this Order, why this action should not be dismissed 23 under Habeas Rule 4 for the reasons stated above. 24 Instead of filing a response to the instant Order, Petitioner may request a 25 voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 26 41(a). The Clerk is directed to provide a Notice of Dismissal form. However, 27 the Court warns any dismissed claims remain subject to the statute of 28 limitations under Section 2244(d)(1). 1 Petitioner is cautioned that a failure to respond timely in compliance 2 || with this Order may result in this action being dismissed for the foregoing 3 ||reasons, for failure to prosecute, and for failure to comply with a Court order. 4 || See Fed. R. Civ. P. 41(b). 5 6 || Dated: May 01, 2023 7 er de 8 ND. EARLY 9 nited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28