Opinion
2:21-cv-02237-JDP (HC)
12-13-2021
RICHARD ANTONIO HUNDLEY, Petitioner, v. T. CISNEROS, Respondent.
ORDER GRANTING PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND DIRECTING THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO RULE ON THESE FINDINGS AND RECOMMENDATIONS ECF No. 2
FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A COGNIZABLE FEDERAL HABEAS CLAIM ECF No. 1
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in September 2009 and sentenced to life without parole. ECF No. 1 at 1. His petition is untimely. Accordingly, I recommend that it be dismissed.
The amended petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
Petitioner requests that I review the state court's interpretation and imposition of Penal Code § 190.2(a)(17) in his case. ECF No. 1 at 18. Under that provision of California law, death or life without parole is the appropriate penalty for a person convicted of murder in the first degree while engaged in other felonious activity including, but not limited to, robbery, rape, or kidnapping. See Cal. Penal Code § 190.2(a)(17). More specifically, petitioner seeks review of the state court's “Banks/Clark” review of his case. ECF No. 1 at 68. As the state superior court explained in the only reasoned habeas decision, a Banks/Clark review examines “whether there was sufficient evidence in the record to support the true finding of the robbery-murder special circumstance . . . .” Id.
Referring the California Supreme Court's decisions in People v. Banks, 61 Cal.4th 788 (2015) and People v. Clark, 63 Cal.4th 522 (2016).
As stated above, petitioner was convicted in 2009. Id. at 1. Thus, the Anti-Terrorism and Effective Death Penalty Act's (“AEDPA”) one-year statute of limitations for seeking federal habeas review has long since expired. See 28 U.S.C. § 2244(d)(1). And the Ninth Circuit has held that AEDPA's limitations period is not excepted for modifications or clarifications of state law. See Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005). In light of that holding, courts in this circuit have declined to consider Banks/Clark claims that fall outside the statute of limitations. See, e.g., Acosta v. Lynch, No. 3:20-cv-02039-WQH-AHG, 2021 U.S. Dist. LEXIS 127513, *7 (S.D. Cal. 2021) (“[S]ince Banks and Clark were both decided by the California Supreme Court, Petitioner is not entitled to a later start date of the statute of limitations.”). Petitioner argues that, under his own understanding of the law, the habeas petitions relevant to his claims were timely filed. ECF No. 1 at 51-53. But AEDPA's statute of limitations makes no exception for a petitioner's unfamiliarity with the law. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”). It is ORDERED that:
1. Petitioner's application to proceed in forma pauperis, ECF No. 2, is granted.
2. The Clerk of Court shall assign a district judge to rule on these findings and recommendations.
It is RECOMMENDED that petitioner's petition, ECF No. 1, be dismissed without leave to amend as untimely.
These findings and recommendations are submitted to the U.S. District Court Judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen days of service of the findings and recommendations, petitioner may file written objections to the findings and recommendations with the court. That document must be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The District Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
IT IS SO ORDERED.