Esequiel Zamora v. Kern Valley State Prison Warden, M.D. Biter ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ESEQUIEL ZAMORA, ) CASE NO. CV 19-7294-MWF (PJW) ) 11 Petitioner, ) ORDER TO SHOW CAUSE WHY PETITION ) SHOULD NOT BE DISMISSED 12 v. ) ) 13 KERN VALLEY STATE PRISON WARDEN ) M.D. BITER, ) 14 ) Respondent. ) 15 ) ) 16 17 On August 22, 2019, Petitioner filed a Petition for Writ of 18 Habeas Corpus, challenging a 2010 conviction for first degree murder 19 in the Los Angeles County Superior Court. (Petition at 1.) In it, 20 Petitioner contends that the admission of inflammatory evidence 21 deprived him of due process, the sentencing documents contained errors 22 regarding the amount of restitution that was ordered, his trial and 23 appellate counsel were constitutionally ineffective, and his 24 conviction was obtained by inappropriate and perjured testimony . 25 (Petition at 5-6.) From the face of the Petition, it appears that his 26 claims are unexhausted. Alternatively, they are untimely. As such, 27 absent further explanation from Petitioner, they will be dismissed. 28 1 As a matter of comity between state and federal courts, a federal 2 court generally will not address the merits of a habeas corpus 3 petition unless the petitioner has first exhausted his state remedies, 4 i.e., sought state court review of every ground presented in the 5 petition by presenting it to the highest state court. Rose v. Lundy, 6 455 U.S. 509, 518-22 (1982). Indeed, the law provides that a habeas 7 petition brought by a person in state custody cannot be granted 8 “unless it appears that--(A) the applicant has exhausted the remedies 9 available in the courts of the State; or (B)(i) there is an absence of 10 available State corrective process; or (ii) circumstances exist that 11 render such process ineffective to protect the rights of the 12 applicant.” 28 U.S.C. § 2254(b)(1). To exhaust state remedies, a 13 petitioner must fairly present his contentions to the state courts, 14 and the highest court of the state must dispose of them on the merits. 15 O’Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999). A district 16 court may raise a failure to exhaust sua sponte. Stone v. San 17 Francisco, 968 F.2d 850, 856 (9th Cir. 1992.) 18 According to Petitioner, he presented his first two claims to the 19 California Supreme Court on direct appeal in 2012 and his other claims 20 in a habeas corpus petition that is currently pending in that court. 21 (Petition at 5-6, 7-8.) Assuming that is the case, the entire 22 Petition is subject to dismissal as a “mixed” petition due to the fact 23 that some of his claims are unexhausted. See Rhines v. Weber, 544 24 U.S. 269, 273 (2005) (explaining federal court “may not adjudicate 25 mixed petitions for habeas corpus, that is, petitions containing both 26 exhausted and unexhausted claims.”). 27 A review of the state appellate court website at 28 appellatecases.courtinfo.ca.gov, however, reveals that no habeas 2 1 || petition from Petitioner is currently pending in the state supreme court, although it appears that Petitioner filed a habeas corpus 3 || petition that was denied by the state supreme court in June 2012. Assuming all of his claims were properly exhausted in 2012, the 5 || Petition is untimely, as follows. 6 State prisoners seeking to challenge their state convictions in 7 || federal habeas corpus proceedings are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). Petitioner’s conviction became 9 || final on May 22, 2012--90 days after the state supreme court denied 10 || his petition for review and the time expired for him to file a 11 |} petition for writ of certiorari with the United States Supreme Court. 12 || See, e.g., Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir. 2005). 13 || Therefore, the statute of limitations expired one year later, on May 1422, 2013. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 15 2001). Petitioner did not file this Petition, however, until August 16 || 22, 2019, more than six years after the deadline. Absent statutory or 17 | equitable tolling, the Petition is untimely and must be dismissed. 18 IT IS THEREFORE ORDERED that, no later than September 25, 2019, 19 || Petitioner shall inform the Court in writing why this case should not 20 || be dismissed for the reasons set forth above. Failure to timely file 21 || a response will result in dismissal. 22 DATED: August 23, 2019 fois 9 Who 24 PATRICK J. WALSH 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 |] s:\Paw\cases-State Habeas\ZAMORA, E 7294\0SC dismiss pet.wpd