(HC) Carter v. McVay ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DEWAYNE NORMAN CARTER, No. 2:23-cv-00161-EFB (HC) 11 Petitioner, 12 v. ORDER TO SHOW CAUSE 13 M. McVAY, 14 Respondent. 15 16 Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254.1 The petition lists two ground for relief: (1) 18 ineffective assistance of federal habeas counsel in violation of the Sixth Amendment; and (2) a 19 coerced guilty plea in violation of due process. ECF No. 1 at 5, 7. 20 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 21 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 22 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 23 instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to 24 ///// 25 ///// 26 ///// 27 28 1 He also seeks leave to proceed in forma pauperis. ECF No. 2. That request is granted. 1 federal habeas relief because the first claim for relief is not cognizable and the petition is barred 2 by the statute of limitations.2 3 Petitioner’s first claim must be dismissed because it is not cognizable. There is no 4 constitutional right to counsel in a habeas proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 5 (1987); Wright v. West, 505 U.S. 277, 293 (1992). Because petitioner had no constitutional right 6 to counsel in his federal habeas proceeding, no error by that counsel could constitute a Sixth 7 Amendment violation. See Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1991). 8 Regardless, the entire petition must be dismissed because it is barred by the statute of 9 limitations. A federal habeas petition must be filed within one year of: (1) the date the state court 10 judgment became final, either by conclusion of direct review or the expiration of time to seek 11 such review; (2) the date on which an impediment to filing created by state action is removed (if 12 the applicant was prevented from filing by that action); (3) the date on which a constitutional 13 right is newly recognized by the Supreme Court and made retroactive on collateral review; or (4) 14 the date on which the factual predicate of the claim could have been recognized through the 15 exercise of due diligence. See 28 U.S.C. § 2244(d). In most cases, the statute of limitations 16 begins to run after the state court judgment becomes final pursuant to 28 U.S.C. § 2244(d)(1). 17 In May of 2014, petitioner was convicted of first degree murder and sentenced to life 18 without the possibility of parole. ECF No. 1 at 1. Review of the California Courts Case 19 Information website shows that on June 14, 2016, the Court of Appeal for the Third Appellate 20 District affirmed the judgment, and on August 24, 2016, the California Supreme Court denied his 21 petition for review.3 Consequently, petitioner’s state court judgment became final ninety days 22 later, on November 22, 2016, after the time to seek review from the United States Supreme Court 23 24 2 This court may raise the statute of limitations sua sponte when reviewing a habeas 25 petition. See Day v. McDonough, 547 U.S. 198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001) (federal district courts may consider the timeliness of a state prisoner’s 26 habeas petition to serve the interests of judicial efficiency). 27 3 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 28 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 by way of a petition for writ of certiorari ended.4 See Bowen v. Roe, 188 F.3d 1157, 1159 (9th 2 Cir. 1999) (“The period within which [petitioner] could have sought direct review of his 3 conviction therefore included the ninety-day period within which [petitioner] could have filed a 4 petition for writ of certiorari . . . the one-year limitations period in 28 U.S.C. § 2244(d)(1)(A) 5 began to run on the date that ninety-day period expired.”). Absent tolling, petitioner had until 6 November 22, 2017 to file a federal habeas petition. Petitioner filed the instant petition on 7 January 22, 2023, over six years after his criminal conviction became final. ECF No. 1 at 21. 8 Because the record indicates that the petition may “fall outside the one-year time period, the 9 petitioner has the burden of demonstrating that he is entitled to tolling.” Smith v. Duncan, 297 10 F.3d 809, 815 (9th Cir. 2002), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 11 (2005). 12 Petitioner contends that his petition should be considered timely because of alleged 13 “misconduct” by counsel in a prior federal habeas action, designated Carter v. Asuncion, No. 14 2:18-cv-00078-WBS-AC (E.D. Cal.) (“Carter”). Petitioner cites to Holland v. Florida, 560 U.S. 15 631 (2010), which held that an attorney’s unprofessional conduct could be an “extraordinary 16 circumstance” justifying equitable tolling of the statute of limitations. ECF No. 1 at 14. To be 17 entitled to equitable tolling, however, petitioner must not only show that some extraordinary 18 circumstance stood in his way, he must also show that he has been pursuing his rights diligently. 19 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 20 According to petitioner, his federal habeas counsel “coerced” him into “signing a 21 withdrawal motion which [his attorney] drafted and then falsely proffered to this court as having 22 been written and prepared by petitioner.” ECF No. 1 at 5. Indeed, court records show that 23 petitioner timely filed a petition on November 1, 2017, and that on June 14, 2018, petitioner’s 24 counsel moved to withdraw it. Carter, ECF No. 1 & 20. On June 29, 2018, the court granted the 25 motion and dismissed the petition. Id., ECF No. 21. Petitioner’s claim of misconduct is 26 undercut, however, by a handwritten letter from petitioner that was filed with the motion to 27 28 4 Petitioner states that he did not file a petition for writ of certiorari. ECF No. 1 at 3. 1 |} withdraw. In the letter, dated June 13, 2018 and signed under penalty of perjury, petitioner writes 2 || that based on the advice of his counsel, he has asked him to move to withdraw the petition. /d. 3 | ECF No. 20 at 3. Assuming, however, that this handwritten letter was “coerced” and that the 4 || conduct of petitioner’s attorney’s was sufficiently egregious to constitute an extraordinary 5 || circumstance for equitable tolling purposes, the criteria for equitable tolling has not been satisfied 6 || because petitioner has not shown that he exercised reasonable diligence in the nearly five years 7 || that have elapsed since withdrawing the first petition in June of 2018. 8 Accordingly, IT IS HEREBY ORDERED that within fourteen days from the date of 9 || service of this order, petitioner must show cause why the court should not summarily dismiss the 10 || petition as untimely. If petitioner intends to rely on the equitable-tolling doctrine, his response to 11 || this Order to Show Cause should state facts demonstrating that, despite the exercise of reasonable 12 | diligence, he could not have filed the instant petition any earlier. Failure to comply with this 13 || order may result in a recommendation that this action be dismissed. 14 15 || Dated: April 17, 2023. Eg Vout, 4 a Lp 4H AA 16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28