(HC) Johnson v. State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW D. JOHNSON, No. 2:22-cv-0536 TLN AC P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se on a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. By order filed August 25, 2022, petitioner was ordered to show 19 cause why the petition should not be dismissed as untimely. ECF No. 28. He has now filed his 20 response. ECF No. 29. 21 In his response to the order to show cause, petitioner argues that his petition should be 22 allowed to proceed because he has valid claims, and he is being held as part of a conspiracy to 23 keep him in unlawful custody. Id. He further states that he did not file a petition sooner because 24 he did not know how to do so. Id. at 2. To the extent petitioner may be attempting to argue that 25 he is entitled to equitable tolling because he is actually innocent, he has presented no evidence to 26 support this claim. When petitioner was ordered to show cause why this action should not be 27 dismissed, he was cautioned that in order to pursue a claim for actual innocence he would be 28 required to submit new evidence for consideration. ECF No. 28 at 4. With respect to his claim 1 | that he did not know how to file a petition, “‘a pro se petitioner’s lack of legal sophistication is 2 | not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 3 | 448 F.3d 1150, 1154 (9th Cir. 2006); see also Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 4 | 909 (9th Cir. 1986) (pro se prisoner’s illiteracy and lack of knowledge of the law unfortunate but 5 || insufficient to establish cause to overcome procedural default). Petitioner has therefore failed to 6 || demonstrate that he is entitled to equitable tolling or otherwise shown that his petition is timely. 7 | Therefore, as set forth in the August 25, 2022 order to show cause, which is incorporated herein 8 | by reference, the petition is untimely and should be dismissed. See ECF No. 28. 9 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 10 || habeas corpus be dismissed as untimely. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be filed and served within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 If petitioner files objections, he may also address whether a certificate of appealability 20 || should issue and, if so, why and as to which issues. Pursuant to Rule 11 of the Federal Rules 21 || Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it 22 || enters a final order adverse to the applicant. A certificate of appealability may issue only “if the 23 || applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 24 | § 2253(c)(2). 25 || DATED: September 26, 2022 ~ ttre Llar—e_ 26 ALLISONCLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28