(HC) Jackson v. Neuschmid ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY PECK JACKSON, Case No. 1:20-cv-00198-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION AS UNTIMELY AND 13 v. FOR FAILURE TO STATE A COGNIZABLE CLAIM 14 ROBERT NEUSCHMID, et al., RESPONSE DUE IN FOURTEEN DAYS 15 Respondents. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN CASE TO DISTRICT JUDGE 18 19 Petitioner Gregory Peck Jackson, a state prisoner without counsel, petitioned for a writ of 20 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims that California’s procedure 21 for initiating a criminal case by felony complaint is improper. Id. at 15. On April 2, 2020, we 22 ordered petitioner to show cause within thirty days of the date of service of our order why the 23 petition should not be dismissed as untimely and for failure to state a claim. ECF No. 10. More 24 than thirty days have passed, and petitioner has failed to respond to our order. For the following 25 reasons, we recommend the petition be dismissed. 26 27 28 1 Discussion 2 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking 3 habeas relief under § 2254 must comply with a one-year statute of limitations. For most habeas 4 petitioners, the one-year clock starts to run on “the date on which the judgment became final by 5 the conclusion of direct review or the expiration of the time for seeking such review.” 42 U.S.C. 6 § 2244(d)(1)(A). Here, petitioner was convicted of assault with a firearm on February 11, 2014; 7 he did not seek direct review of his conviction. ECF No. 1 at 1, 7. Absent any statutory or 8 equitable tolling, the one-year statute of limitations expired on April 14, 2015 under 9 § 2244(d)(1)(A).1 Nearly five years later, on January 23, 2020, petitioner sought federal habeas 10 relief through the instant petition. Petitioner does not argue that he is entitled to any tolling.2 11 Therefore, we find that petitioner has failed to meet his burden to show that the petition is timely. 12 See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002), abrogated on other grounds by Pace v. 13 DiGuglielmo, 544 U.S. 408 (2005). 14 Moreover, petitioner failed to allege a violation of “clearly established federal law”— 15 meaning a violation of a U.S. Supreme Court holding. See White v. Woodall, 572 U.S. 415, 419 16 (2014). Federal habeas relief is not available for alleged violations of state law. See Estelle v. 17 McGuire, 502 U.S. 62, 67 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may 18 not issue a writ [of habeas corpus] on the basis of a perceived error of state law.”). Here, 19 petitioner claims that California’s procedure for initiating a criminal case by felony complaint is 20 improper.3 ECF No. 1 at 15. Petitioner argues that the complaint did not confer jurisdiction on 21 the state trial court, did not give petitioner proper notice of the charges brought against him, and 22 1 We arrive at April 14, 2015 by adding 60 days to the date of petitioner’s conviction, which is the 23 time for seeking direct review of a criminal conviction in California. See Cal. R. of Ct. 8.308(a) (West 2010). 24 2 Although petitioner sought habeas relief in the California Supreme Court on September 19, 2019, that petition did not affect the timeliness of the instant petition. See Nino v. Galaza, 183 25 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is 26 filed because there is no case ‘pending’ during that interval.”). 27 3 The petition appears, in large part, to be a photocopy of a boilerplate habeas petition challenging California’s criminal complaint procedure as unconstitutional and is devoid of any references to 28 the facts or circumstances of petitioner’s case. 1 that the filing itself was a public offense that nullified petitioner’s conviction. See id. at 15-28. 2 We have found no “clearly established federal law” holding California’s criminal complaint 3 procedure unconstitutional. 4 Therefore, we find that it plainly appears that petitioner is not entitled to relief. We 5 recommend that the petition be dismissed as untimely and for failure to state a cognizable claim. 6 Certificate of Appealability 7 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 8 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 9 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 10 Cases requires a district court to issue or deny a certificate of appealability when entering a final 11 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 12 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner 13 makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 14 This standard requires the petitioner to show that “jurists of reason could disagree with the district 15 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 16 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 17 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 18 showing of the denial of a constitutional right. Thus, we recommend that the court decline to 19 issue a certificate of appealability. 20 Findings and Recommendations 21 For the foregoing reasons, we recommend that the court grant dismiss the petition as 22 untimely and for failure to state a claim and decline to issue a certificate of appealability. These 23 findings and recommendations are submitted to the U.S. district judge presiding over the case 24 under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the 25 findings and recommendations, the parties may file written objections to the findings and 26 recommendations with the court and serve a copy on all parties. That document must be 27 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 28 district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). WAS LYOUNY INE VET RVUOT PO □□□ PF □□ OT VE ST 1 | Order 2 The clerk of court is directed to assign this case to a district judge for the purposes of 3 | reviewing these findings and recommendations. 4 5 IT IS SO ORDERED. ° Vy 22, —N prssann — Dated: _ May 22, 2020 7 UNI STATES MAGISTRATE JUDGE 8 9 | No. 206. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28