Darryl Lynn Davis v. Josie Gastello

I.

INTRODUCTION

On February 18, 2021, Darryl Lynn Davis (“Petitioner”), proceeding pro se, constructively filed1 a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 in the Central District of California, challenging his 2004 conviction for two counts of attempted murder. ECF Docket No. (“Dkt.”) 1. The Petition appears subject to dismissal because it is untimely, as well as second and successive.2 The Court will not make a final determination regarding whether the Petition should be dismissed, however, without giving Petitioner an opportunity to address these issues.

1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). 2 Petitioner lists Josie Gastello as the respondent. Dkt. 1 at 1. Danny Samuel replaced Josie Gastello as warden of the California Men’s Colony in January 2021. California Department of Corrections and Rehabilitation Facility Locator, California Men’s Colony, https://www.cdcr.ca.gov/facility-locator/cmc/ (last…