(HC) Broussard v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURLEY JOHN BROUSSARD, JR., Case No. 1:19-cv-00164-AWI-JDP (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO COMPLY WITH STATUTE OF LIMITATIONS 14 UNITED STATES OF AMERICA, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 1 16 ORDER DENYING MOTION TO STAY 17 ECF No. 7 18 19 20 Petitioner Curley John Broussard, Jr., a state prisoner without counsel, seeks a writ of 21 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for review 22 under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to 23 the habeas proceeding must examine the habeas petition and order a response to the petition 24 unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 25 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 Petitioner also filed a motion to stay, which is denied. ECF No. 7. 27 28 1 Statute of Limitations 2 This court may raise the statute of limitations sua sponte when reviewing a habeas 3 petition. See Day v. McDonough, 547 U.S. 198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 4 1042 n.3 (9th Cir. 2001) (Federal district courts may consider the timeliness of a state prisoner’s 5 habeas petition to serve the interests of judicial efficiency.). 6 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 7 habeas relief under § 2254 must comply with the statute of limitations set by 28 U.S.C. § 2244(d). 8 The one-year period begins on the latest of four dates: 9 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 10 review; 11 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the 12 United States is removed, if the applicant was prevented from filing by such State action; 13 (C) the date on which the constitutional right asserted was initially 14 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively 15 applicable to cases on collateral review; or 16 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of 17 due diligence. 18 Id.; see also Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir. 2001). 19 The statute of limitations period can be tolled in various ways. For example, a petitioner 20 can obtain equitable tolling if he shows: “(1) that he has been pursuing his rights diligently, and 21 (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Williams 22 v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting Holland v. Florida, 560 U.S. 631, 649 23 (2010)). 24 Here, petitioner asserts three grounds for relief: (1) judicial misconduct during his 1983 25 trial, (2) miscarriage of justice during his 1983 trial, and (3) a violation of his rights caused by a 26 “code of silence” enforced by the Los Angeles County Superior Court in 1984. See ECF No. 1 at 27 4-15. Petitioner sought state-level habeas review of his 1983 conviction multiple times. The 28 1 most recent of petitioner’s state habeas petitions was denied on October 1, 2008 by the California 2 Supreme Court. See Broussard on H.C., No. S165761 (Cal. Oct. 1, 2008).1 3 To comply with § 2244(d), petitioner must have either filed his petition within one year of 4 the California Supreme Court’s denial of review or show he is entitled to tolling under one of the 5 narrow exceptions of § 2244(d)(1)(B-D). Here, petitioner filed his federal petition on February 6, 6 2019—over 10 years after the California Supreme Court’s “judgment became final by the 7 conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A).2 Because the record indicates that the 8 petition may “fall outside the one-year time period, the petitioner has the burden of demonstrating 9 that he is entitled to tolling.” Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002), abrogated on 10 other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005). Therefore, petitioner must explain 11 to this court how his petition complies with § 2244(d). 12 Motion to Stay 13 Petitioner filed a motion to stay on June 6, 2019. ECF No. 7. Petitioner expressed his 14 intention to file additional civil suits disputing the validity of his 1983 criminal conviction under 15 alternative theories of law, including breach of contract and fraud. Id. at 4-5. This court may stay 16 federal habeas proceedings while a petitioner seeks to exhaust state-level appellate or habeas 17 remedies, as required by AEDPA. See Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 18 F.3d 1063, 1070-71 (9th Cir. 2003). However, AEDPA does not require a federal habeas 19 petitioner to seek other forms of civil relief, such as those contemplated by petitioner, prior to 20 filing a federal habeas petition. See 28 U.S.C. § 2254(b)(1). Because AEDPA does not require 21 the types of suits petitioner intends to file as a prerequisite to federal habeas relief, no stay is 22 needed and the court denies his motion. 23 24 1 Petitioner then sought a federal writ of habeas corpus in this court, which was dismissed for 25 failure to state a cognizable claim on January 14, 2009. See Broussard v. Adams, No. 1:08-cv- 01926-GSA (E.D. Cal. Jan. 14, 2009). Thus, even if petitioner could show that the instant 26 petition is timely, the petition might yet be dismissed as a second or successive petition. 27 See 28 U.S.C. § 2244(b)(2) 2 The California Supreme Court’s denial of a petition for review of a Court of Appeal is final on 28 filing. See Cal. Rules of Court, rule 8.532(b)(2)(A). 1 In the same motion, petitioner seeks an order requiring the prison to provide him with 2 | regular access to the prison law library. ECF No. 7 at 6. Under § 2254, a writ of habeas corpus is 3 | available to prisoners challenging the fact or duration of their confinement. See Heck v. 4 | Humphrey, 512 U.S. 477, 481 (1994). In contrast, if a favorable judgment for the petitioner 5 | would not “necessarily lead to his immediate or earlier release from confinement,” the court lacks 6 | jurisdiction under this provision. See Nettles v. Grounds, 830 F.3d 922, 935-37 (9th Cir. 2016). 7 | Therefore, this court lacks jurisdiction to consider petitioner’s request for law library access. 8 | Order 9 Within fourteen days from the date of service of this order, petitioner must show cause 10 || why the court should not summarily dismiss the petition. Failure to comply with this order may 11 | result in the dismissal of the petition. Petitioner’s motion to stay is denied. ECF No. 7. 12 3 IT IS SO ORDERED. 14 ( Waban Dated: _ January 15, 2020 15 UNIT#D STATES MAGISTRATE JUDGE 16 17 18 | No. 206. 19 20 21 22 23 24 25 26 27 28