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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DJUANE LAMAR FLETCHER, ) NO. CV 20-8538-DSF (AGR)

12 ) Petitioner, ) 13 ) ) 14 STUWART SHERMAN, Warden, ) ORDER TO SHOW CAUSE ) WHY PETITION FOR WRIT OF 15 Respondent. ) HABEAS CORPUS SHOULD ) NOT BE DISMISSED 16 ) ) 17 18 On August 31, 2020, Petitioner constructively filed a Petition for Writ of 19 Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 20 2254, challenging his conviction and sentence. (Dkt. No. 1 at 1-2.) On the face 21 of the Petition, it appears that his claims are both untimely and unexhausted. The 22 court orders Petitioner to show cause, in writing, on or before January 28, 2021, 23 why the court should not recommend dismissal of the Petition as barred by the 24 statute of limitations and/or unexhausted. 25 I. 26

PROCEDURAL HISTORY

27 On June 16, 2015, Petitioner pleaded guilty to carjacking and admitted one 28 prior violent felony under the Three Strikes Law and one prior prison term 1 allegation (Case No. LA079640). (Dkt. No. 1 at 2.)1 On March 28, 2017, he was 2 sentenced to an aggregate term of imprisonment of fifteen years. (Dkt. No. 3 at 3 15.) Petitioner did not pursue direct appeal.2 (Dkt. No. 1 at 2; Dkt. No. 3 at 16.) 4 According to the California appellate website, Petitioner filed a petition for 5 writ of habeas corpus in the California Court of Appeal on February 11, 2019. 6 The petition was summarily denied on February 20, 2019. (Case No. B295573.) 7 On March 15, 2019, Petitioner filed a petition for writ of habeas corpus in the 8 California Supreme Court. The petition was summarily denied on June 12, 2019. 9 (Case No. S254706). 10 On September 30, 2019, Petitioner filed a petition for writ of mandate or 11 prohibition in the California Court of Appeal. The petition was summarily denied 12 on October 16, 2019. (Case No. B301076.) 13 On September 30, 2019, Petitioner filed a petition for writ of habeas corpus 14 in the Los Angeles County Superior Court, which denied it on October 16, 2019. 15 (Dkt. No. 1 at 3-4.) Finally, Petitioner filed two more petitions for writ of habeas 16 corpus in the California Supreme Court: a November 18, 2019 petition which the 17 court denied on February 2, 2020 (Case No. S259152), and a March 27, 2020 18 petition which the court denied on July 8, 2020 (Case No. S261504). 19 Petitioner constructively filed the underlying Petition on August 31, 2020. 20 21 1 See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 22 1131-32 (9th Cir. 2012) (noting court may take judicial notice of state court docket). 23 2 Petitioner alleges in the Petition that he filed a petition for review, but he 24 gives the case number (S261504) of his habeas petition in the California Supreme Court. (Dkt. No. 1 at 3; see 25 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id= 2316017&doc_no=S261504&request_token=NiIwLSEmXkw2W1BFSCItTE5IMD 26 w0UDxTJSJOUzpSMCAgCg%3D%3D.) No petition for review was filed because Petitioner did not appeal his conviction or sentence to the California Court of 27 Appeal. (Dkt. No. 1 at 2.) Petitioner apparently submitted a belated notice of appeal November 4, 28 2019. That notice was marked lodged or received” and the case was dismissed on March 4, 2020. (Case No. B302643; Dkt. No. 3 at 16.) 1 (Dkt. No. 1 at 24.) 2 II. 3 DISCUSSION 4 A. Timeliness 5 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 6 which applies to this action, contains a one-year statute of limitations for a petition 7 for writ of habeas corpus filed in federal court by a person in custody pursuant to 8 a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts 9 running on the latest of either the date when a conviction becomes final under 28 10 U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D). The statute of 11 limitations applies to each claim on an individual basis. See Mardesich v. Cate, 12 668 F.3d 1164, 1171 (9th Cir. 2012). 13 1. The Date on Which Conviction Became Final 14 Under 28 U.S.C. § 2244(d)(1)(A), the limitations period runs from the date 15 on which the judgment became final by the conclusion of direct review or the 16 expiration of the time for seeking direct review. 17 Petitioner was sentenced and judgment was entered no later than March 18 28, 2017. He did not pursue direct appeal. Thus, his conviction and sentence 19 became final 60 days after March 28, 2017. See People v. Mora, 214 Cal. App. 20 4th 1477, 1482 (2013) (imposition of sentence is equated with entry of final 21 judgment); see also California Rules of Court, rule 8.308(a). Petitioner could not 22 petition for a writ of certiorari from the United States Supreme Court because he 23 did not appeal his conviction and sentence to California Supreme Court. See 24 Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing 28 U.S.C. §§ 1257 and Sup. 25 Ct. R. 13). Thus, Petitioner’s conviction became final on May 30, 2017, when his 26 deadline to appeal his conviction and sentence expired. The AEDPA statute of 27 limitations period expired one year later, on May 30, 2018. 28 Petitioner constructively filed this Petition on August 31, 2020, over two 1 years later. (Dkt. No. 1.) Absent a showing that the accrual date was delayed or 2 the limitations period was tolled, the Petition is untimely. 3 2. Delayed Accrual– § 2244(d)(1)(D) 4 Under § 2244(d)(1)(D), the limitations period starts running on “the date on 5 which the factual predicate of the claim or claims presented could have been 6 discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). 7 The “‘due diligence’ clock starts ticking when a person knows or through diligence 8 could discover the vital facts, regardless of when their legal significance is 9 actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). 10 Petitioner has not argued that he is entitled to a later start date than the 11 date his conviction and sentence became final, and no basis for delayed accrual 12 is apparent from the record. 13 3. Statutory Tolling 14 Generally, the statute of limitations is tolled during the time “a properly filed 15 application for State post-conviction or other collateral review with respect to the 16 pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Waldrip v. 17 Hall, 548 F.3d 729, 734 (9th Cir. 2008). However, once the limitation period has 18 expired, later-filed state habeas petitions do not toll the limitation period. See 19 Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). 20 All of Petitioner’s state habeas petitions were filed well after the AEDPA 21 limitation period expired. (See Section I., supra.) Accordingly, the Petition is 22 untimely unless Petitioner can demonstrate that he is entitled to equitable tolling. 23 4. Equitable Tolling 24 A petitioner who files a federal habeas petition after the expiration of the 25 one-year statute of limitations may be entitled to equitable tolling. See Holland v. 26 Florida, 560 U.S. 631, 649 (2010). The petitioner must show that he was 27 diligently pursuing his rights, but some extraordinary circumstance stood in his 28 way and prevented timely filing. Id.; see Bills v. Clark, 628 F.3d 1092, 1097 (9th 1 Cir. 2010) ([“E]quitable tolling is available where the prisoner can show 2 extraordinary circumstances were the cause of an untimely filing.”) “A petitioner 3 must show that his untimeliness was caused by an external impediment and not 4 by his own lack of diligence.” Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 5 (9th Cir. 2007). “Indeed, the threshold necessary to trigger equitable tolling 6 [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. 7 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and citation 8 omitted). 9 Here, Petitioner has not presented any basis for equitably tolling the federal 10 statute of limitations. The Petition remains untimely. 11 B. Exhaustion 12 As a matter of comity between state and federal courts, a federal court 13 generally will not address the merits of a habeas corpus petition unless the 14 petitioner has first exhausted his state remedies. See Rose v. Lundy, 455 U.S. 15 509, 518-22 (1982). Indeed, the law provides that a habeas petition brought by a 16 person in state custody cannot be granted “unless it appears that – (A) the 17 applicant has exhausted the remedies available in the courts of the State; or (B)(i) 18 there is an absence of available State corrective process; or (ii) circumstances 19 exist that render such process ineffective to protect the rights of the applicant.” 20 28 U.S.C. § 2254(b)(1). To exhaust state remedies, a petitioner must fairly 21 present his contentions to the state courts, and the highest court of the state must 22 dispose of them on the merits. See O’Sullivan v. Boerckel, 526 U.S. 838, 842, 23 844-45 (1999). A claim has not been fairly presented to a state court unless the 24 petitioner has described both the operative facts and the federal legal theory on 25 which the claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) 26 (per curiam); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011). 27 A district court may raise a failure to exhaust sua sponte. See Stone v. San 28 Francisco, 968 F.2d 850, 856 (9th Cir. 1992) Importantly, Petitioner bears the 1 burden of demonstrating that he has exhausted available state remedies. See 2 Rollins v. Superior Court of Los Angeles, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 3 2010); see also Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972). 4 Here, Petitioner asserts three claims in his Petition: (1) Cal. Penal Code § 5 215(A) is not a violent crime; (2) failure to separately charge enhancements 6 under Cal. Penal Code §§ 667(A) and 667.5(B) violated his Sixth and Fourteenth 7 Amendment rights, and Due Process rights; and (3) Petitioner should have been 8 permitted to withdraw his guilty plea in light of the new law. (Dkt. No. 1 at 5-6.) 9 The Petition does not state that Petitioner alerted the California Supreme 10 Court that he was alleging violations of his federal constitutional rights. See 11 Duncan, 513 U.S. at 365-66 (“If state courts are to be given the opportunity to 12 correct alleged violations of prisoners’ federal rights, they must surely be alerted 13 to the fact that the prisoners are asserting claims under the United States 14 Constitution.”). Petitioner appears to have alleged violations of his Sixth and 15 Fourteenth Amendment and Due Process rights in his habeas petition with the 16 California Supreme Court, but it looks like he did so in the context of his 17 ineffective assistance of counsel claim and not the sentence enhancements 18 challenge. (See Dkt. No. 1 at 3.) In fact, Petitioner appears not to have 19 mentioned sections 667(A) and 667.5(B) sentence enhancements in his habeas 20 petition before the California Supreme Court at all. (See id.) While Petitioner 21 also states that he challenged the characterization of Cal. Penal Code § 215(A) 22 and “AB 1618 Plea Bargain,” he does not state whether he alleged that either 23 violated his federal constitutional rights.3 (See id.) 24 Petitioner also contends that he currently has a habeas petition pending in 25 the Los Angeles County Superior Court which he filed on June 16, 2020, and in 26 27 28 3 Notably, with respect to his plea bargain claim included in this Petition, Petitioner references only California state law. (Dkt. No. 1 at 6.) 1 which he also asserted his “withdraw[a]l of plea deal A.B. 1618” claim.’ (/d. at 8.) 2 In sum, Petitioner has not demonstrated that any of the claims in his Petition are 3 properly exhausted. 4 lll. 5 ORDER 6 Therefore, the court orders Petitioner to show cause, on or before January 7 28, 2021, why the court should not recommend dismissal of the Petition with 8 prejudice as barred by the statute of limitations, or without prejudice as 9 unexhausted, for the reasons set forth above. If Petitioner does not respond to 10 this Order to Show Cause, the court will recommend that the Court dismiss the 11 Petition with prejudice as barred by the statute of limitations. 12 13

15 DATED: December 28, 2020 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 ar “To the extent Petitioner intended to incorporate the rest of the claims 8 | Belition (See □□□ No. 1 at 15-22), none are exhausted es