Opinion
ED CV 22-01680-CJC (DFM)
10-27-2022
Ronald Eddie Sanchez v. Warden
Present: The Honorable Douglas F. McCormick, United States Magistrate Judge
CIVIL MINUTES-GENERAL
Proceedings: (IN CHAMBERS) Order to Show Cause
On September 19, 2022, Petitioner Ronald Eddie Sanchez, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254. See Dkt. 1 (“Petition”).
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Under this rule, district courts may “consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 202 (2006). “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Id. For the reasons set forth below, Petitioner is ordered to show cause why the Petition should not be dismissed as untimely.
I. BACKGROUND
In March 2011, Petitioner was convicted of three counts of lewd acts upon a child under California Penal Code § 288. See Petition at 2; Riverside Superior Court, Public Access, https://public-access.riverside.courts.ca.gov/OpenAccess/CaseSearch.asp (search by case number “RIF1001596”) (last accessed Oct. 27, 2022). Petitioner also admitted prior convictions under the “Strikes law.” See People v. Sanchez, No. E053760, 2012 WL 3685987, at *1 (Cal.Ct.App. Aug. 28, 2012). The Riverside County Superior Court sentenced him to an aggregate sentence of 75 years to ilfe. See id.; Petition at 1
Page numbers refer to the CM/ECF pagination.
Petitioner also pleaded guilty in January 2010 to two counts of violations of California Penal Code § 290 (Sex Officer Registration Act). See Riverside Superior Court, Public Access, supra (search by case number “RIF153262”) (last accessed Oct. 27, 2022). In that case, the superior court sentenced Petitioner to 36 months' probation. See id.
Petitioner states in his Petition that he was convicted under California Penal Code § 270, which he describes as “failing to register.” See Petition at 2, 7. However, there is no indication in the state court records that Petitioner was ever charged with violation of § 270. See Riverside Superior Court, Public Access, supra (search by case number “RIF1001596”). Instead, Petitioner appears to confuse § 270, which pertains to child neglect, with § 290, which pertains to sex offender registration; Petitioner's references to § 270 in his Petition appear to be references to his 2010 conviction for violations of § 290. See id.; see also Dkt. 1-4 (showing Petitioner referring to § 290 as relevant Penal Code section).
Petitioner challenges his 2011 conviction and sentence, arguing that the prosecution violated his due process rights and that his sentence is invalid and contrary to his plea deal from a prior conviction in 1987. See Petition at 7. Petitioner asserts that in 1987, he pleaded guilty to violation of California Penal Code § 288, and as part of the plea deal, he agreed to be sentenced as a “serious felon” and to serve 90 days and county jail plus 5 years of probation. See id. at 7-8. Petitioner asserts that he had no obligation under this plea deal to register as a sex offender. See id. He argues that despite this, the prosecution improperly “charged” him for failure to register, raised his failure to register during the jury trial leading up to his 2011 conviction under § 288, and “enhanced” his sentence based on his failure to register. See id. at 7-12. Petitioner also argues that he should not have been sentenced within the Strike law because neither his prior conviction under § 288 nor his 2010 conviction under § 290 should be counted as a strike crime. See id. at 8, 11. He appears to argue that sentencing him to life in prison for his conviction violated his constitutional rights and amounted to improperly disregarding his prior plea deal. See id. at 10-11.
Petitioner appealed his conviction in June 2011, and the Fourth District Court of Appeal affirmed the conviction in August 2012. See id. at 2; California Courts, Appellate Courts Case Information, 4th Appellate District Division 2, https://appellatecases.courtinfo.ca.gov/search.cfm?dist=42 (search by case number “E053760”) (last accessed Oct. 27, 2022).
Petitioner asserts that he sought further review of his conviction by the California Supreme Court and that his appeal was denied, but he does not provide any further detail regarding the appeal or when it was decided. See Petition at 2. There is no indication in the California Supreme Court's records that Petitioner directly appealed his conviction to the state supreme court. See California Courts, Appellate Court Case Information, Supreme Court, https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search by name “Ronald Sanchez”) (last accessed Oct. 27, 2022) (no record of petition for review by Petitioner).
Petitioner also filed multiple petitions for writ of habeas corpus in state court before filing the instant Petition. First, Petitioner filed a habeas petition in the Riverside County Superior Court in July 2013. See Dkt. 1-2 at 2. It appears that the superior court granted this petition and later ordered the prosecution to turn over the phone numbers of two witnesses to Petitioner in order to allow him to investigate whether those witnesses surreptitiously communicated during Petitioner's trial. See id. at 2-5. However, from the records submitted, the details of these habeas proceedings are unclear. In particular, it is unclear what habeas relief Petitioner requested, what relief the superior court granted, and when these proceedings concluded.
Later, in March 2022, Petitioner filed another habeas petition in the superior court. See Dkt. 1-5. It appears that in this habeas petition, Petitioner challenged his conviction and sentence on grounds similar to those asserted in the instant Petition. See id.; Petition at 7- 12. The superior court denied the petition in April 2022. See Dkt. 1-5 at 2. Later that month, Petitioner filed a habeas petition in the Fourth District Court of Appeal, and the appellate court denied the petition in June 2022. See California Courts, Appellate Courts Case Information, 4th Appellate District Division 2, supra (search by case number “E078893”). Petitioner then appealed this denial by filing a petition for review by the California Supreme Court in July 2022, and the state supreme court denied his petition in August 2022. See California Courts, Appellate Court Case Information, Supreme Court, supra, (search by case number “S275390”); see also Dkt. 1-4.
II. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year limitations period applies to a federal petition for writ of habeas corpus filed by a person in state custody. See 28 U.S.C . § 2244(d)(1). Ordinarily, the limitations period runs from the date on which the petitioner's judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. If a petitioner files a direct appeal to the highest state court but does not petition for writ of certiorari in the United States Supreme Court, the conviction becomes final ninety days after the state court issues its decision. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Here, it is not clear whether Petitioner directly appealed his conviction to the California Supreme Court. If he did not, his conviction became final once the time to file the petition for review expired. On August 28, 2012, the appellate court filed its opinion affirming Petitioner's conviction. See Sanchez, 2012 WL 3685987, at *5. Under the California Rules of Court, the time for seeking further review of the decision would have expired after 40 days. See Cal. Rules of Court R. 8.366(b)(1) (appellate court decision becomes final 30 days after filing); Cal. Rules of Court R. 8.500(e)(1) (petition for review must be filed and served within 10 days after appellate court decision becomes final).
Thus, it appears Petitioner's conviction may have become final as early as October 7, 2012. AEDPA's one-year limitations period would have commenced the next day, October 8, 2012, and expired on October 8, 2013. See 28 U.S.C. § 2244(d)(1). However, Petitioner did not file the instant Petition until September 19, 2022, nearly nine years later. In the absence of any applicable tolling, it thus appears that the Petition is untimely.
“A habeas petitioner is entitled to statutory tolling of AEDPA's one-year statute of limitations while a ‘properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.'” Nedds v. Calderon, 6 78 F.3d 777, 780 (9th Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). Statutory tolling does not extend to the time between the date on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because, during that time, there is no case “pending.” Nino v. Galaza, 1 83 F.3d 1003, 1006 (9th Cir. 1999). Here, Petitioner may be entitled to statutory tolling based on his prior state court habeas proceedings. However, without sufficient records of Petitioner's 2013 habeas proceedings before the superior court, the Court cannot determine the amount of statutory tolling that Petitioner could claim.
In addition to the statutory tolling provided for by § 2244(d)(2), the “AEDPA limitations period may be tolled” when it is “equitably required.” Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011). The “threshold necessary to trigger equitable tolling [under AEDPA] is very high.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (alteration in original). A court may grant equitable tolling only where “‘extraordinary circumstances' prevented an otherwise diligent petitioner from filing on time.” Forbess v. Franke, 749 F.3d 837, 839 (9th Cir. 2014). Here, Petitioner has not offered any explanation for his failure to file the instant Petition in a timely manner and therefore has not shown that he is entitled to equitable tolling.
Accordingly, based upon the Petition as currently submitted, § 2244(d)(1) appears to bar this action. Petitioner is therefore ORDERED TO SHOW CAUSE why this action should not be dismissed as untimely by filing a written response no later than twentyeight (28) days after he is served with this Order. Petitioner is advised to inform the Court of (1) any direct appeal of his conviction to the California Supreme Court; and (2) further details regarding Petitioner's habeas proceedings before the Riverside County Superior Court beginning in 2013, in particular, what grounds for habeas relief Petitioner asserted, what the scope of habeas relief granted was, and when these proceedings concluded; and (3)
any reason demonstrating entitlement to statutory or equitable tolling. Petitioner is encouraged to file copies of any additional documents available in support of the items above.
Petitioner may instead request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of the Court has attached a Notice of Dismissal form. Petitioner is expressly warned that any dismissed claims may be later subject to AEDPA's statute of limitations.
Petitioner is warned that his failure to timely respond to this Order will result in the Court dismissing this action with prejudice as untimely and for failure to prosecute. See Fed.R.Civ.P. 41(b).