1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARD ANTONIO HUNDLEY, Case No. 2:21-cv-02237-JDP (HC) 10 Petitioner, ORDER GRANTING PETITIONER’S

APPLICATION TO PROCEED IN FORMA

11 v. PAUPERIS AND DIRECTING THAT THE

CLERK OF COURT ASSIGN A DISTRICT

12 T. CISNEROS, JUDGE TO RULE ON THESE FINDINGS

AND RECOMMENDATIONS

13 Respondent. ECF No. 2 14

FINDINGS AND RECOMMENDATIONS

15 THAT THIS ACTION BE DISMISSED FOR

FAILURE TO STATE A COGNIZABLE

16 FEDERAL HABEAS CLAIM 17 ECF No. 1 18 19 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 20 under 28 U.S.C. § 2254. He was convicted in September 2009 and sentenced to life without 21 parole. ECF No. 1 at 1. His petition is untimely. Accordingly, I recommend that it be dismissed. 22 The amended petition is before me for preliminary review under Rule 4 of the Rules 23 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 24 examine the habeas petition and order a response to the petition unless it “plainly appears” that 25 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 26 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27 Petitioner requests that I review the state court’s interpretation and imposition of Penal 28 Code § 190.2(a)(17) in his case. ECF No. 1 at 18. Under that provision of California law, death 1 or life without parole is the appropriate penalty for a person convicted of murder in the first 2 degree while engaged in other felonious activity including, but not limited to, robbery, rape, or 3 kidnapping. See Cal. Penal Code § 190.2(a)(17). More specifically, petitioner seeks review of 4 the state court’s “Banks/Clark” review of his case.1 ECF No. 1 at 68. As the state superior court 5 explained in the only reasoned habeas decision, a Banks/Clark review examines “whether there 6 was sufficient evidence in the record to support the true finding of the robbery-murder special 7 circumstance . . . .” Id. 8 As stated above, petitioner was convicted in 2009. Id. at 1. Thus, the Anti-Terrorism and 9 Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations for seeking federal 10 habeas review has long since expired. See 28 U.S.C. § 2244(d)(1). And the Ninth Circuit has 11 held that AEDPA’s limitations period is not excepted for modifications or clarifications of state 12 law. See Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005). In light of that holding, 13 courts in this circuit have declined to consider Banks/Clark claims that fall outside the statute of 14 limitations. See, e.g., Acosta v. Lynch, No. 3:20-cv-02039-WQH-AHG, 2021 U.S. Dist. LEXIS 15 127513, *7 (S.D. Cal. 2021) (“[S]ince Banks and Clark were both decided by the California 16 Supreme Court, Petitioner is not entitled to a later start date of the statute of limitations.”). 17 Petitioner argues that, under his own understanding of the law, the habeas petitions relevant to his 18 claims were timely filed. ECF No. 1 at 51-53. But AEDPA’s statute of limitations makes no 19 exception for a petitioner’s unfamiliarity with the law. See Rasberry v. Garcia, 448 F.3d 1150, 20 1154 (9th Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an 21 extraordinary circumstance warranting equitable tolling.”). 22 It is ORDERED that: 23 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is granted. 24 2. The Clerk of Court shall assign a district judge to rule on these findings and 25 recommendations. 26 27 1 Referring the California Supreme Court’s decisions in People v. Banks, 61 Cal. 4th 788 28 (2015) and People v. Clark, 63 Cal. 4th 522 (2016). 1 It is RECOMMENDED that petitioner’s petition, ECF No. 1, be dismissed without leave 2 | to amend as untimely. 3 These findings and recommendations are submitted to the U.S. District Court Judge 4 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 5 | Practice for the United States District Court, Eastern District of California. Within fourteen days 6 | of service of the findings and recommendations, petitioner may file written objections to the 7 | findings and recommendations with the court. That document must be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The District Judge will then review the 9 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 10

IT IS SO ORDERED.

12 ( ie — Dated: _ December 13, 2021 Q_——. 13 JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE

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