Dawson v. State of California ( 2020 )


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  • 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH DEAN DAWSON, Case No. 19-cv-05494-PJH 8 Petitioner, ORDER DISMISSING MOTION TO 9 v. STAY WITH LEAVE TO AMEND 10 THE PEOPLE OF CALIFORNIA, Re: Dkt. No. 25 Respondent. 11 12 13 Petitioner, a California prisoner, proceeds with a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. The petition was dismissed with leave to amend. Petitioner has not 15 filed an amended petition but did file a motion for a stay. 16 BACKGROUND 17 Petitioner was sentenced to 20 years in prison after he pleaded no contest to three 18 counts of second-degree robbery. People v. Dawson, No. H041904, 2016 WL 758786, at 19 *1 (Cal. Ct. App. Feb. 26, 2016). The California Court of Appeal affirmed his conviction 20 on February 26, 2016. Id. This court can find no record of a petition for review with the 21 California Supreme Court immediately following the affirmance by the California Court of 22 Appeal. In 2019 petitioner filed habeas petitions with the Santa Clara County Superior 23 Court, California Court of Appeal and California Supreme Court. Petition (Docket No. 10) 24 at 3-4. The petitions were all denied in 2019. 25 STANDARD OF REVIEW 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that he is in 1 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 2 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 3 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 4 pursuant to a judgment of a state court must “specify all the grounds for relief available to 5 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 6 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 7 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 8 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 9 1970)). 10 LEGAL CLAIMS 11 Petitioner does not present distinct claims though he appears to argue that his 12 sentence was improper because the distinction between violent and non-violent offenses 13 violates the law. He also argues that he should be resentenced pursuant to California 14 Senate Bill 1393 which provides discretion for trial courts to strike or dismiss prior serious 15 or violent felonies used to enhance sentences. Senate Bill 1393 became law on 16 September 30, 2018. 17 The Antiterrorism and Effective Death Penalty Act of 1996, which became law on 18 April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of 19 habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital 20 state convictions or sentences must be filed within one year of the latest of the date on 21 which: (A) the judgment became final after the conclusion of direct review or the time 22 passed for seeking direct review; (B) an impediment to filing an application created by 23 unconstitutional state action was removed, if such action prevented petitioner from filing; 24 (C) the constitutional right asserted was recognized by the Supreme Court, if the right 25 was newly recognized by the Supreme Court and made retroactive to cases on collateral 26 review; or (D) the factual predicate of the claim could have been discovered through the 27 exercise of due diligence. 28 U.S.C. § 2244(d)(1). 1 In the original screening order, the court noted that it appeared that this petition 2 was untimely. The California Court of Appeal affirmed the conviction on February 26, 3 2016. If petitioner did not seek review with the California Supreme Court, then the 4 petition is untimely because the statute of limitations expired in 2017. Petitioner was 5 advised that he should indicate if he sought review from the California Supreme Court in 6 2016 on direct review. His later state habeas petitions do not affect the analysis because 7 a state habeas petition filed after AEDPA's statute of limitations ended cannot toll the 8 limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) 9 (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended 10 before the state petition was filed,” even if the state petition was timely filed). 11 Petitioner was also informed that assuming that this petition is timely, petitioner is 12 still not entitled to relief. If he sought resentencing in this petition, which contains the 13 same arguments presented to the state courts, the state courts have already denied his 14 requests. To the extent petitioner claimed that California law had been violated, any such 15 claim is dismissed because federal habeas relief is not available for state law errors. A 16 “federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground 17 that he is in custody in violation of the Constitution or laws or treaties of the United 18 States.’” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citations omitted). 19 Petitioner has failed to address these issues. He has not indicated if he filed a 20 petition with the California Supreme Court on direct review in 2016. He has not clarified 21 his claims or even if this petition presents cognizable federal claims. In his motion for a 22 stay petitioner presents boiler plate exhibits regarding the statute of limitations and 23 procedural default. Yet, he does not address how these arguments relate to his petition 24 and claims. Nor does petitioner present any arguments for a stay. The motion for a stay 25 is dismissed with leave to amend. 26 Petitioner is advised that in Rhines v. Weber, 544 U.S. 269 (2005) the United 27 States Supreme Court found that a stay and abeyance of a mixed federal petition should 1 have first exhausted the claims in state court, that the claim or claims at issue potentially 2 have merit and that there has been no indication that petitioner has been intentionally 3 dilatory in pursuing the litigation. Rhines, supra, at 277-78. If petitioner wishes to stay 4 this action, he shall file a motion addressing the Rhines factors. 5 In the alternative, petitioner may file a motion for a stay pursuant to the three-step 6 procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 7 F.3d 1133 (9th Cir. 2009).1 A petitioner seeking to avail himself of the Kelly three-step 8 procedure is not required to show good cause, as under Rhines, but rather must show 9 that the amendment of any newly exhausted claims back into the petition satisfies both 10 Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common core of operative facts” 11 and Duncan v. Walker, 533 U.S. 167 (2001), by complying with the statute of limitations. 12 King, 564 F.3d at 1141-43 (finding district court’s dismissal of unexhausted claims was 13 improper because petitioner was not required to show good cause to avail himself of the 14 Kelly three-part procedure but affirming the dismissal as harmless because the 15 unexhausted claims did not relate back to the claims in the original petition that were fully 16 exhausted at the time of filing). However, no statute of limitations protection is imparted 17 by such a stay, nor are exhausted claims adjudicated during the pendency of such a stay. 18 The motion for a stay is dismissed without prejudice. Petitioner may file an 19 amended motion addressing the standards set forth above. Petitioner should also 20 indicate what claims he wishes to exhaust if a stay is requested. The court notes that the 21 state courts have already denied petitioner’s recent claims. Petitioner must also file an 22 amended petition. He must address if the petition is timely, he must present distinct 23 claims and describe how they present viable federal claims. 24 25 1 “Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any 26 unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to 27 exhaust the deleted claims; and (3) the petitioner later amends his petition and re- 1 CONCLUSION 2 1. The motion for stay (Docket No. 25) is DISMISSED with leave to amend in 3 accordance with the standards set forth above. Petitioner may file an amended motion 4 for stay by February 28, 2020. An amended petition must be filed no later than 5 February 28, 2020, and carry the words AMENDED PETITION on the first page. Failure 6 to amend within the designated time will result in the dismissal of the petition. 7 2. Petitioner must keep the court informed of any change of address and must 8 comply with the court's orders in a timely fashion. Failure to do so may result in the 9 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 10 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 11 41(b) applicable in habeas cases). 12 IT IS SO ORDERED. 13 Dated: January 29, 2020 14 15 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27

Document Info

Docket Number: 4:19-cv-05494

Filed Date: 1/29/2020

Precedential Status: Precedential

Modified Date: 6/20/2024