(HC) Griffin v. Martinez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE GRIFFIN, Case No. 1:17-cv-01137-DAD-JDP 12 Petitioner, INFORMATIONAL ORDER 13 v. ECF No. 32 14 JOEL D. MARTINEZ, ORDER EXTENDING THE DEADLINE TO SHOW CAUSE 15 Respondent. ECF No. 31 16 RESPONSE DUE IN THIRTY DAYS 17 18 Petitioner Robert Lee Griffin, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 30. On April 17, 2020, we issued an order to show 20 cause why the amended petition should not be dismissed as untimely. ECF No. 31. In his 21 response to our order to show cause, petitioner stated that he misunderstood the habeas 22 requirements for timely filing. ECF No. 32. Accordingly, we provide petitioner with the 23 following information and extend the deadline for him to show cause why his amended petition 24 should not be dismissed as untimely. 25 Discussion 26 On June 25, 2018, we granted petitioner a stay of his petition under the Kelly procedure so 27 that he could exhaust his state-level remedies and then return to federal court to file a fully 28 exhausted amended petition. See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003); ECF 1 No. 24. Petitioner did so. ECF No. 30. However, in our findings and recommendations to grant 2 petitioner a stay, we warned petitioner that any newly-exhausted claims must be timely. See King 3 v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009); ECF No. 17 at 3-4. Unlike filing an application 4 for state habeas relief, filing a federal habeas claim does not toll AEDPA’s statute of limitations. 5 See Duncan v. Walker, 533 U.S. 167, 181 (2001). To be timely, petitioner’s claims must either 6 (1) meet AEDPA’s statute of limitations requirements, see 28 U.S.C. § 2244(d), or (2) “relate 7 back” to claims contained in the original petition that were exhausted at the time of filing. See 8 King, 564 F.3d at 1143; Mayle v. Felix, 545 U.S. 644, 664 (2005). 9 In our order to show cause, we informed petitioner that his petition appeared untimely. 10 ECF No. 31. Therefore, we ordered petitioner to show that either his amended petition meets 11 AEDPA’s statute of limitations or that his new claims “relate back” to his original claims. Id. at 12 5. Petitioner made no arguments in support of either of these requirements in his response to our 13 order to show cause. Instead, petitioner stated that he mistakenly believed that our grant of a stay 14 under Kelly tolled the federal habeas statute of limitations for his new claims while he exhausted 15 those claims. ECF No. 32 at 1. On the contrary, a stay under Kelly “does nothing to protect a 16 petitioner’s unexhausted claims from untimeliness.” King, 564 F.3d at 1141. 17 For petitioner to proceed with all his claims in his amended petition, he must either show 18 that his amended petition meets AEDPA’s statute of limitations or that his new claims relate back 19 to his original claims. Although it appears that the petition cannot be made timely through 20 statutory tolling, petitioner may be entitled to equitable tolling if he can show that “(1) that he has 21 been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way 22 and prevented timely filing.” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting 23 Holland v. Florida, 560 U.S. 631, 649 (2010)). Petitioner may also argue that his new claims 24 relate back to his old claims because they share a “common core of operative facts.” See Mayle, 25 545 at U.S. 659. As we previously noted, petitioner may have difficulty meeting either of these 26 requirements. ECF No. 31 at 5. 27 Alternatively, petitioner may elect to proceed with his original petition, which contains his 28 four claims of trial court error only. ECF No. 1 at 3. In doing so, petitioner will preserve his wOow 4:48 VEER VET MMU OD PIO eer MV VI 1 | opportunity to seek relief on at least some of his claims. He will also lose the opportunity to 2 || proceed with his ineffective assistance of counsel claims. However, considering that petitioner 3 | may neither be able to show that his amended petition meets the statute of limitations, nor that his 4 | new claims relate back to his old claims, proceeding with his original petition may be petitioner’s 5 | only opportunity to seek habeas relief in any form. 6 | Order 7 Petitioner shall have an additional thirty days to respond to the order to show cause why 8 | his amended petition should not be dismissed as untimely. ECF No. 31. Petitioner may respond 9 | with: (1) arguments showing how his amended petition meets the statute of limitations; (2) 10 | arguments showing that his new claims relate back to his old claims; or (3) a notification that he 11 | wishes to proceed with his original petition only. 12 3 IT IS SO ORDERED. Pp □ \ prssanp Rae — Dated: _ April 29, 2020 15 UNIT#D STATES MAGISTRATE JUDGE 16 17 | No. 206. 18 19 20 21 22 23 24 25 26 27 28