1

2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 20-7889- ODW (MRW) 13 KELLEN CLARKE,

ORDER DISMISSING ACTION

14 Petitioner,

WITHOUT PREJUDICE

15 v. 16 SHERIFF PARKINSON, 17 Respondent. 18

19 The Court dismisses Petitioner’s unexhausted and untimely 20 habeas corpus action without prejudice. 21 * * * 22 1. Petitioner Kellen Clarke is an inmate currently housed at the 23 San Luis Obispo County Jail. According to the petition he filed in this 24 action, Petitioner pled nolo contendere to drunk driving and related 25 charges. In September 2019, the trial court sentenced him to a four-year 26 prison term. (Petition at 2, exhibits.) Petitioner did not seek review of his 27 28 1 conviction or sentence in either the state appellate or supreme courts. 2 (Petition at 2-3.) 3 2. In August 2020, Petitioner filed this habeas corpus action 4 under 28 U.S.C. § 2254. The petition advances claims of impropriety at 5 sentencing, ineffective assistance of counsel, and deficient medical care. 6 * * * 7 3. If it “appears from the application that the applicant or person 8 detained is not entitled” to habeas relief, a court may summarily dismiss a 9 habeas action. 28 U.S.C. § 2243; see also Rule 4 of Rules Governing 10 Section 2254 Cases in United States District Courts (petition may be 11 summarily dismissed if petitioner plainly not entitled to relief); Local Civil 12 Rule 72-3.2 (magistrate judge may submit proposed order for summary 13 dismissal to district judge “if it plainly appears from the face of the petition 14 [ ] that the petitioner is not entitled to relief”). 15 4. A preliminary review of the face of the petition demonstrates 16 that Petitioner is not entitled to habeas relief. As discussed below, the 17 action is patently unexhausted and untimely. 18 5. Unexhausted – Under AEDPA, a petitioner must exhaust all 19 claims as a prerequisite to a federal court’s consideration of a habeas 20 corpus petition. 28 U.S.C. § 2254(b)(1)(A); Kyzar v. Ryan, 780 F.3d 940, 21 946 (9th Cir. 2015). Petitioner must fairly present those claims to the 22 state’s highest court. Rose v. Lundy, 455 U.S. 509 (1982). 23 6. That obviously did not happen here. Petitioner admits in the 24 petition that he did not seek appellate review of his conviction or sentence. 25 As a result, there is no state court decision for this federal court to review 26 for constitutional error. Petitioner’s unexhausted claims cannot be 27 considered on habeas review. 28 1 7. Untimely – Under AEDPA, state prisoners have a one-year 2 period within which they must seek federal habeas review of their habeas 3 claims. 28 U.S.C. § 2244(d)(1). The AEDPA limitations period is generally 4 triggered when the prisoner’s conviction becomes final, or under other 5 specific conditions set forth in the statute. 28 U.S.C. § 2244(d)(1)(A-D); Lee 6 v. Lampert, 653 F.3d 929, 933 (9th Cir. 2011). When a California prisoner 7 does not appeal a conviction, that conviction becomes final under AEDPA 8 sixty days after the entry of judgment. Mendoza v. Carey, 449 F.3d 1065, 9 1067 (9th Cir. 2006); Cal. R. Ct. 8.308(a). 10 8. Petitioner’s conviction became final in November 2018 (60 days 11 after September 2018 judgment). His deadline to file this federal habeas 12 action expired in approximately November 2019. However, Petitioner did 13 not file the action until August 2020, or seven months after the statutory 14 deadline. Moreover, the petition does not explain the delay in any way. 15 The petition is untimely as a matter of law. 16 * * *

17 18 19 20 21 22 23 24 25 26 27 28 1 Therefore, the present action is hereby DISMISSED without 2 | prejudice. 3 IT IS SO ORDERED. 4 5 aecge 6 | Dated: September 14, 2020 7 HON. OTIS D. WRIGHT II

UNITED STATES DISTRICT JUDGE

8 9 Presented by: 10 | | 11 LU [ 12

HON. MICHAEL R. WILNER

13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28