Perez v. Pollard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 ARMANDO PEREZ, Case No.: 20-cv-1030-BAS-BLM 11 Petitioner, ORDER DENYING WITHOUT 12 PREJUDICE REQUESTS FOR v. PROTECTIVE ORDER, TOLLING 13 AND TO STAY AND ABEY MARCUS POLLARD, Warden, FEDERAL PROCESS 14 Respondent. [ECF No. 1] 15 16 Petitioner, a state prisoner proceeding pro se, has submitted a document using the 17 initial page of this district’s § 2254 habeas corpus petition form entitled “Petition for Writ 18 of Habeas Corpus Protective Order Stay and Abey,” and further captioned in part as 19 “Protective Petition Request to Stay and Abey the Federal Habeas Judicial Process Until 20 State Remedies are Fully Exhausted.” (ECF No. 1 at 1–2.) Petitioner requests “For this 21 court to grant this protective order For the issue of equitable tolling” to allow Petitioner to 22 present his claims in a federal habeas petition for the Court’s consideration “once Petitioner 23 has exhausted his remedies in the lower state courts before raising them in the California 24 Supreme Court,” and notes that he intends to raise numerous claims appellate counsel 25 declined to raise in the prior state appellate proceedings. (Id. at 2–3.) 26 It does not appear that Petitioner has initiated habeas proceedings in this Court. The 27 document Petitioner filed uses the initial page of this district’s habeas corpus petition form 28 and is entitled “Petition for Writ of Habeas Corpus Protective Order Stay and Abey,” but 1 Petitioner has not included any subsequent pages of the petition form. Moreover, Petitioner 2 repeatedly indicates that his request is for a protective order and stay and abeyance. (See 3 e.g., ECF No. 1 at 1, 2, 13–14, 155.) In an accompanying declaration, Petitioner “requests 4 this court to grant this petition for stay and abey order to protect the tolling time bar process 5 from causing great harm to his due process clause rights.” (Id. at 14.) Petitioner has also 6 attached several exhibits, including a declaration he indicates was filed in San Diego 7 County Superior Court listing claims or grounds he previously attempted to raise in 8 supplemental briefs (see id. at 15, 25–29), as well as prior motions and briefs on various 9 pre-trial, trial and/or appellate issues, including what appears to be a copy of the 10 supplemental brief Petitioner attempted to file in the state appellate court (see e.g., id. at 11 92–142, 150–52). However, there is no indication that Petitioner is presently attempting 12 to raise those claims or issues in this Court, nor does Petitioner indicate whether he is in 13 the process of exhausting those claims or issues in state court. Petitioner also does not 14 indicate that he is presently attempting to raise any already exhausted claims in this Court. 15 Instead, Petitioner generally asserts that he “should not be procedurally time barred from 16 raising any claims and this Court should consider all of Petitioner’s claims for grounds for 17 relief in a Federal Habeas Corpus Petition Writ once Petitioner has exhausted his remedies 18 in the lower state court before raising them in the California Supreme Court.” (Id. at 3.) 19 Petitioner is a non-capital prisoner, as he indicates that he was sentenced to life 20 without parole. (See ECF No. 1 at 1, 3.) Accordingly, Petitioner can only initiate habeas 21 proceedings by filing a Petition in this Court. See Calderon v. U.S. Dist. Court for the N. 22 Dist. of Cal., 98 F.3d 1102, 1107 n.3 (9th Cir. 1996) (“Unlike non-capital prisoners who 23 initiate habeas proceedings by filing a petition for a writ of habeas corpus, capital prisoners 24 commence federal habeas proceedings by filing a request for appointment of counsel.”) 25 (citing McFarland v. Scott, 512 U.S. 849 (1994)). As such, because Petitioner has not 26 initiated habeas proceedings, the Court is without jurisdiction to consider whether tolling 27 or stay and abeyance is appropriate. 28 1 The one-year statute of limitations of 28 U.S.C. § 2241(d)(1)(A)–(D) provides that 2 the limitation period runs from the latest of: 3 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 4 (B) the date on which the impediment to filing an application created by State 5 action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 6 (C) the date on which the constitutional right asserted was initially recognized 7 by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 8 (D) the date on which the factual predicate of the claim or claims presented 9 could have been discovered through the exercise of due diligence. 10 28 U.S.C. § 2244(d)(1)(A)–(D). 11 The statute of limitations does not run while a properly filed state habeas corpus 12 petition is pending. 28 U.S.C. § 2244(d); see Evans v. Chavis, 546 U.S. 189, 193 (2006) 13 (“As long as the prisoner filed a petition for appellate review within a ‘reasonable time,’ 14 he could count as ‘pending’ (and add to the 1–year time limit) the days between (1) the 15 time the lower state court reached an adverse decision, and (2) the day he filed a petition 16 in the higher state court.”) (citing Carey v. Saffold, 536 U.S. 214, 222–23 (2002)); but see 17 Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ when 18 its delivery and acceptance [by the appropriate court officer for placement into the record] 19 are in compliance with the applicable laws and rules governing filings”); Pace v. 20 DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected petitioner’s 21 [post-conviction] petition as untimely, it was not ‘properly filed,’ and he is not entitled to 22 statutory tolling under § 2244(d)(2).”) However, absent some other basis for tolling, the 23 statute of limitations continues to run while a federal habeas petition is pending. See 24 Duncan v. Walker, 533 U.S. 167, 181–182 (2001). 25 Even to the extent the Court could liberally construe Petitioner’s filing as a habeas 26 petition, it would be subject to dismissal without prejudice and leave to amend prior to the 27 Court addressing the instant requests. First, Petitioner has failed to satisfy the filing fee 28 requirement, by either paying the $5.00 filing fee or moving to proceed in forma pauperis. 1 || See Rule 3(a), 28 U.S.C. foll. § 2254. Second, a Petition for Writ of Habeas Corpus must 2 submitted in accordance with the Local Rules of the Southern District of California. See 3 ||Rule 2(c), 28 U.S.C. foll. § 2254; see also Civ. LR HC.2(b). In order to comply with the 4 || Local Rules, the petition must be submitted upon a court-approved form and in accordance 5 || with the instructions approved by the Court. Again, while the document Petitioner filed 6 ||uses the initial page of this district’s habeas corpus petition form, it does not include any 7 ||subsequent pages of the form. 8 CONCLUSION AND ORDER 9 For the reasons discussed above, Petitioner’s requests for a protective order, tolling, 10 to stay and abey the federal process until state remedies are exhausted are DENIED 11 || WITHOUT PREJUDICE. If Petitioner intends to initiate a federal habeas corpus action, 12 ||he must do so by filing amended petition in this Court on or before August 17, 2020. Once 13 || Petitioner has initiated a federal habeas corpus proceeding, he may choose to re-raise his 14 requests. If Petitioner fails to file an amended petition within this time frame, and thereafter 15 || wishes to initiate a habeas corpus action, he must do so by filing a new case. The Clerk of 16 || Court is directed to send Petitioner a blank Southern District of California amended §2254 17 habeas petition form and in forma pauperis application along with a copy of this Order. 18 IT IS SO ORDERED. 19 / 20 || DATED: June 15, 2020 ( ytd A (Liphan 6 21 United States District Judge 22 23 24 25 26 27 28 _A-