(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, FINDINGS AND RECOMMEDATIONS TO DISMISS PETITION AS UNTIMELY 13 v. OBJECTIONS DUE IN FOURTEEN DAYS 14 UNITED STATES OF AMERICA, ECF No. 1 15 Respondent. 16 17 Petitioner Curley John Broussard, Jr., a state prisoner without counsel, seeks a writ of 18 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. On January 15, 2020, we screened 19 petitioner’s habeas petition, found it untimely, and ordered petitioner to show cause why his 20 petition should not be summarily dismissed for failure to comply with the statute of limitations. 21 ECF No. 8. We granted petitioner fourteen days to respond to the order to show cause. See id. 22 The time for responding has passed and petitioner has failed to respond. We recommend that the 23 petition be dismissed. 24 Discussion 25 Under Rule 4 of the Rules Governing Section 2254 Cases, the assigned judge must 26 promptly examine the habeas petition and must order a response to the petition unless it “plainly 27 appears” that the petitioner is not entitled to relief. Rule 4 was “designed to give courts an active 28 role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 1 958, 968 (9th Cir. 2018) (citation omitted). The court may dismiss claims at screening for “easily 2 identifiable” procedural defects. See id. at 968. The court may raise the statute of limitations sua 3 sponte when reviewing a habeas petition. See Day v. McDonough, 547 U.S. 198, 209 (2006); 4 Herbst v. Cook, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001) (stating that federal district courts may 5 consider the timeliness of a state prisoner’s habeas petition to serve the interests of judicial 6 efficiency). 7 Here, petitioner challenges deficiencies in his 1983 trial and 1984 post-trial proceedings. 8 ECF No. 1 at 4-15. Petitioner sought state-level habeas review multiple times. ECF 8 at 2-3. 9 The most recent of his state habeas petitions was rejected by the state supreme court in 2008. Id. 10 Petitioner has failed to show how the instant petition, filed over 35 years after the conviction he 11 challenges, meets the Antiterrorism and Effective Death Penalty Act’s statute of limitations for 12 petitioners seeking habeas relief under § 2254. See 28 U.S.C. § 2244(d) (stating that absent 13 extraordinary circumstances, a federal habeas petition must be filed within one year of the “date 14 on which the [challenged] judgment became final by the conclusion of direct review or the 15 expiration of the time for seeking such review”). In the absence of any evidence showing that his 16 petition is timely, we recommend dismissal of the petition. 17 Certificate of Appealability 18 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 19 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 20 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 21 Cases requires a district court to issue or deny a certificate of appealability when entering a final 22 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 23 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural 24 grounds without reaching the underlying constitutional claims, the court should issue a certificate 25 of appealability “if jurists of reason would find it debatable whether the petition states a valid 26 claim of the denial of a constitutional right and that jurists of reason would find it debatable 27 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 28 484 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it 1 | to dispose of the case, a reasonable jurist could not conclude either that the district court erred in 2 | dismissing the petition or that the petitioner should be allowed to proceed further.” Jd. 3 Here, reasonable jurists would not find our conclusion debatable or conclude that 4 | petitioner should proceed further. Thus, we recommend that the court decline to issue a 5 | certificate of appealability. 6 | Findings and Recommendations 7 We recommend that petitioner’s writ of habeas corpus be dismissed as untimely. We 8 | submit these findings and recommendations to the U.S. district judge presiding over the case 9 | under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the 10 | findings and recommendations, the parties may file written objections to the findings and 11 | recommendations with the court and serve a copy on all parties. The document containing the 12 | objections must be captioned “Objections to Magistrate Judge’s Findings and 13 | Recommendations.” The presiding district judge will then review the findings and 14 | recommendations under 28 U.S.C. § 636(b)(1)(C). 15 16 IT IS SO ORDERED. " N prssany — Dated: _ February 13, 2020 18 UNI STATES MAGISTRATE JUDGE 19 20 | No. 206. 21 22 23 24 25 26 27 28