1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE PETERSEN, Case No. 1:19-cv-00975-NONE-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

GRANT RESPONDENT’S MOTION TO

13 v. DISMISS 14 KERN COUNTY DISTRICT OBJECTIONS DUE IN THIRTY DAYS

ATTORNEY,

15 ECF No. 18 Respondent. 16 ORDER DISMISSING PETITIONER’S

MOTION TO WAIVE SERVICE

17 REQUIREMENT AS MOOT 18 ECF No. 29 19 20 Petitioner Kyle Petersen, a state prisoner without counsel, petitioned for a writ of habeas 21 corpus under 28 U.S.C. § 2254. ECF No. 1. On March 20, 2020, respondent moved to dismiss 22 the petition, arguing that it is untimely, its third claim is not cognizable, and its fourth claim is 23 unexhausted. See generally ECF No. 18. On April 27, 2020, petitioner filed an opposition, ECF 24 No. 30, and respondent replied on May 4, 2020, ECF No. 31. The matter is now ripe for review. 25 For the reasons stated below, we recommend that respondent’s motion to dismiss be granted. 26 Petitioner also moved for a waiver of this court’s service requirement, which we dismiss as moot. 27 ECF No. 29. 28 1 I. Background 2 In 2015, petitioner pleaded no contest to possession of child pornography and admitted 3 two sentencing enhancements. ECF No. 18 at 2. Petitioner did not appeal the judgment and was 4 sentenced to four years in state prison.1 Id. Petitioner then unsuccessfully sought habeas relief in 5 the Kern County Superior Court, California Court of Appeal, and California Supreme Court. Id. 6 II. Discussion 7 A. Standard of Review 8 No habeas rule explicitly applies to motions to dismiss. See Hillery v. Pulley, 533 F. 9 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 10 provided for in the rules but must be inferred from their structure and the Advisory Committee 11 Notes.”). Following an approach frequently taken by other courts in this district, we find that 12 Rule 4 of the Rules Governing Section 2254 Cases provides the most appropriate analytical 13 framework for this motion to dismiss, which asserts untimeliness as a basis for dismissal. 14 See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at 15 *4 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” 16 procedure for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). It 17 limits our consideration to “the petition and any attached exhibits”—somewhat like the limitation 18 to the pleadings that would apply to a motion to dismiss for untimeliness outside the habeas 19 context under Federal Rule of Civil Procedure 12(b)(6) or 12(c).2 Under Rule 4, we evaluate 20 21

22 1 Although it appears that petitioner may no longer be incarcerated for the crime of his conviction, 23 the petition is not rendered moot because collateral consequences of his conviction are presumed. See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). 24 2 See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the 25 complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”); see also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), 26 matters outside the pleadings are presented to and not excluded by the court, the motion must be 27 treated as one for summary judgment under Rule 56.”); Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 28 1989). 1 whether it “plainly appears” that the petitioner is not entitled to relief—and if so we dismiss the 2 petition. 3 B. Statute of Limitations 4 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 5 habeas relief under § 2254 must comply with a one-year statute of limitations. For most habeas 6 petitioners, the one-year clock starts to run on “the date on which the judgment became final by 7 the conclusion of direct review or the expiration of the time for seeking such review.” 42 U.S.C. 8 § 2244(d)(1)(A). In rare situations, the one-year clock starts to run on a later date. See id. 9 § 2244(d)(1)(B)-(D). For example, the statute of limitations may start to run on “the date on 10 which the factual predicate of the claim or claims presented could have been discovered through 11 the exercise of due diligence.” Id. § 2244(d)(1)(D). 12 Petitioner argues that § 2244(d)(1)(D) applies to his case because he did not discover the 13 factual predicates of his claims until November 2018. ECF No. 30 at 4. Under § 2244(d)(1)(D), 14 a petition is timely if the petitioner discovers, through the exercise of due diligence, new facts to 15 support a claim within the year before he files his petition. See Quezada v. Scribner, 611 F.3d 16 1165, 1167-68 (9th Cir. 2010). The limitations period begins to run when a prisoner “knows (or 17 through diligence could discover) the important facts, not when the prisoner recognizes their legal 18 significance.” See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Here, petitioner 19 does not claim that he discovered “new facts” that support his claims. Rather, he argues that he 20 encountered a number of difficulties in the two years after his conviction became final that 21 prevented him from discovering the factual predicates of his claims, including a lack of funds to 22 pay for copies of his trial court record, a parole condition prohibiting him from accessing the 23 internet, and an inability to find pro-bono counsel. ECF No. 30 at 3. In November 2018, 24 petitioner met individuals in the Fresno County jail who helped him file a habeas petition.3 Id. at 25 4. 26

27 3 Notably, petitioner’s first state habeas petition was filed on September 13, 2018. ECF No. 18 at 2. Petitioner provides no explanation for his claim that the statute of limitations clock started 28 to run in November 2018, rather than in September 2018 or earlier. 1 Petitioner’s argument fails. In his federal petition, he claims that the court, his attorney, 2 and the prosecutor violated his right to due process during plea negotiations and his plea hearing. 3 See ECF No. 1 at 4-5. Petitioner also claims that his counsel was ineffective, that police 4 conducted an illegal search and seizure of his phone, and that he was never informed of the 5 elements of the crime with which he was charged. Id. The factual predicates of petitioner’s 6 claims were readily apparent to him at the time of his arrest and subsequent plea hearing, and 7 none of his claims rest on newly-discovered evidence. Therefore, § 2244(d)(1)(D) is not 8 applicable to petitioner’s case. 9 As with most habeas petitions, § 2244(d)(1)(A) is the appropriate provision from which to 10 determine the start of statute of limitations clock here. Petitioner was sentenced on June 10, 11 2015, and did not seek direct appellate review. Therefore, his conviction became final under 12 § 2244(d)(1)(A) on August 9, 2015—when time for seeking direct review expired under 13 California law. See Cal. R. Ct. 8.308(a). The federal one-year statute of limitations began 14 running the following day, August 10, 2015. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th 15 Cir. 2001) (citing Fed. R. Civ. P. 6(a)). Thus, absent tolling, the last day for petitioner to file a 16 federal petition was August 9, 2016. He filed his federal petition nearly three years later, on July 17 16, 2019. 18 Although a properly-filed state habeas action does toll the federal statute of limitations, 19 see § 2244(d)(2), a state petition filed after the expiration of the federal statute of limitations does 20 not. See Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Here, petitioner’s first state habeas 21 action was filed September 13, 2018, more than two years after the federal statute of limitations 22 expired. ECF No. 18 at 2. Therefore, he is afforded no statutory tolling. Because petitioner filed 23 the instant petition nearly three years after the expiration of the statute of limitations, we find his 24 25 26 27 28 1 petition untimely and recommend its dismissal.4 Accordingly, we need not analyze respondent’s 2 remaining grounds for dismissal.5 3 III. Motion to Waive Service Requirement 4 Petitioner moves for waiver of our requirement that “copies of all documents submitted to 5 the Court shall be served upon all parties to the action,” arguing that the COVID-19 pandemic has 6 limited his ability to obtain copies of his legal documents. See ECF No. 29.. However, petitioner 7 is not required to serve paper copies of his filings on respondent because respondent has 8 consented to service through the court’s electronic filing system. See Local Rule 135(a); 9 135(g)(1). Therefore, we will deny his motion as moot. 10 IV. Certificate of Appealability 11 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 12 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 13 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 14 Cases requires a district court to issue or deny a certificate of appealability when entering a final 15 4 Petitioner does not seek, nor does he appear eligible for, equitable tolling. Equitable tolling is 16 available to a petitioner who shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland 17 v. Florida, 560 U.S. 631, 649 (2010). Although petitioner faced difficult circumstances common to indigent petitioners without counsel, we cannot find that any of these circumstances were 18 extraordinary and prevented petitioner from timely filing. See Warsinger v. Swarthout, No. 1:11- 19 cv-00008-JLT HC, 2011 U.S. Dist. LEXIS 29834, at *14-15 (E.D. Cal. Mar. 11, 2011) (finding that a habeas petitioner’s “indigent status, his limited legal knowledge, and the prison’s 20 limitations on law library access are circumstances that are no different than those faced by the vast majority of incarcerated prisoners attempting to file petitions for writ of habeas corpus . . . 21 because such circumstances are common to virtually all petitioners, they are not extraordinary and therefore do not justify equitable tolling”). 22 5 Even so, petitioner’s third claim, that police conducted an illegal search and seizure in violation 23 of the Fourth Amendment, does not appear to be cognizable on federal habeas review. See Stone v. Powell, 428 U.S. 465 (1976). Although petitioner seems to have exhausted his fourth claim at 24 the California Supreme Court before raising it in his federal habeas petition, see ECF No. 20-7 at 13, his claim does not appear meritorious. A petitioner who pleaded guilty to his underlying 25 offense is limited to challenging the voluntary and intelligent character of his guilty plea or his counsel’s ineffectiveness in advising him to enter a plea on federal habeas review. See Tollett v. 26 Henderson, 411 U.S. 258, 265-67 (1973); Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017). 27 Here, petitioner has presented little evidence that his plea was not knowing or voluntary and his ineffective assistance of counsel claim appears insufficient to meet the standard of Strickland v. 28 Washington, 466 U.S. 668, 690 (1984). wOAOe UV VY YEN INE VR MMIC Vo POC eT OY VV

1 | order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 2 | F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner 3 | makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 4 | This standard requires the petitioner to show that “jurists of reason could disagree with the district 5 | court’s resolution of his constitutional claims or that jurists could conclude the issues presented 6 | are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 7 | Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 8 | showing of the denial of a constitutional right. Thus, we recommend that the court decline to 9 | issue a certificate of appealability. 10 V. Findings and Recommendations 11 For the foregoing reasons, we recommend that the court grant defendant’s motion to 12 | dismiss, ECF No. 18, dismiss the case, and decline to issue a certificate of appealability. These 13 | findings and recommendations are submitted to the U.S. district judge presiding over the case 14 | under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the 15 | findings and recommendations, the parties may file written objections to the findings and 16 | recommendations with the court and serve a copy on all parties. That document must be 17 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 18 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 19 | VI. Order 20 Petitioner’s motion to waive this court’s service requirement is denied. ECF No. 29. 21

IT IS SO ORDERED.

°° CN prs senn □□□ _ Dated: _ June 5, 2020 24 UNIT#D STATES MAGISTRATE JUDGE 25 26 | No. 206. 27 28