1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 RAFAEL A. MEJIA, ) Case No. 2:21-cv-01490-JWH-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE ) 13 v. ) WHY THE PETITION SHOULD ) NOT BE DISMISSED 14 SUPERIOR COURT OF CALIFORNIA ) COUNTY OF LOS ANGELES, ) 15 ) ) 16 Respondent. ) ) 17 ) 18 19 On January 31, 2021,1 Petitioner Rafael A. Mejia (“Petitioner”), a 20 California state prisoner, constructively filed a “Petition for Writ of Habeas 21 Corpus” using a California state court form (Dkt. 1, “Petition” or “Pet.”) in 22

23 1 Under the “mailbox rule,” “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304

(9th Cir. 2002). In the absence of evidence to the contrary, courts have 25 treated a petition as delivered to prison authorities on the date the petition is signed. See Roberts v. Marshall,

, 770 n.1 (9th Cir. 2010). Here, the Court will 26 afford Petitioner the benefit of the mailbox rule and deems the Petition to have been 27 “filed” on January 31, 2021, the date corresponding to the signature date on the Petition and the attached “Proof of Service.” 28 1 the United States District Court for the Eastern District of California (“Eastern 2 District”). On February 17, 2021, the Eastern District transferred the action to 3 this Court. Dkt. 2. The Court has screened the Petition consistent with its 4 authority under Rule 4 of the Rules Governing Section 2254 Cases in the 5 United States District Courts (“Habeas Rules”) and finds that it appears to 6 suffer from several defects requiring dismissal. The Court thus orders 7 Petitioner to show cause why this action should not be dismissed. 8 I. 9 PROCEDURAL HISTORY 10 On June 1, 2007, in Los Angeles County Superior Court, Petitioner 11 entered pleas of nolo contendere to multiple counts of lewd or lascivious acts 12 upon a child under 14 years of age under

. Pet. at 2, 8, 13 10 (CM/ECF pagination). On December 11, 2008, Petitioner was sentenced to 14 20 years in state prison.

. Petitioner attests that he did not appeal his 15 conviction or seek habeas relief in state court.

. 16 As noted, Petitioner constructively filed the Petition on January 31, 17 2021. By the Petition, Petitioner challenges only his underlying “conviction” 18 and “sentence.” See Pet. at 2. 19 II. 20 PETITIONER’S CLAIMS 21 Petitioner’s grounds for relief are difficult to decipher. As best the Court 22 can discern, Petitioner alleges the following: 23 1. In Ground One, Petitioner claims (1) he did not receive “subpoena 24 or warrant, court ordered signed by Judge”; (2) he was “arrested handcuff[ed] 25 without reading [his] Miranda right and to have counsel, false allegation 26 during interrogation – police misconduct”; (3) “District Attorney – didn’t 27 investigate the allegation nor having grand jury to indict[] but using his power 28 2 1 to convict”; (4) “Public defender – Since [Petitioner] met him all she knows is 2 to get the deal if not you get life sentence on prison and die in Prison” and he 3 “was forced to sign[] the deal because of the threat everytime she see [him] and 4 even given [him] advice[] that [he] could get the most two or 3 years”; (5) 5 Petitioner was subjected to racial discrimination in violation of his due process 6 and equal protection rights; and (6) he is at “high risk” of Covid-19 and is still 7 being held “even though the new law to release high risk” inmates. Pet. at 3. 8 2 In Ground Two, Petitioner claims: (1) he was not informed of his 9 Miranda rights when he was arrested and interrogated; (2) his trial counsel 10 denied his request for a DNA expert to examine the accuser; (3) during 11 sentencing, the trial court never confirmed that he understood the plea 12 agreement and that his plea was voluntary; and (4) he was sentenced to a 13 longer sentence than his trial counsel “promised.”2 Pet. at 4. 14 III. 15 DISCUSSION 16 Under Rule 4 of the Habeas Rules, the Court must review the Petition 17 and, if it plainly appears from the Petition and any attached exhibits that the 18 Petitioner is not entitled to relief, the Court must dismiss the Petition. Here, 19 the Petition appears subject to dismissal for five reasons: (1) Petitioner has not 20 submitted his Petition on the form habeas petition approved by the Central 21 District of California; (2) the Petition does not name a proper respondent; (3) 22

23 2 Petitioner also vaguely alleges that he was attacked while in prison. Pet. at 4. It is 24 unclear whether Petitioner seeks to pursue this claim as it does not challenge either his conviction or sentence. In any event, this claim, which challenges his conditions 25 of confinement, would not be cognizable on federal habeas review. See Preiser v. 26 Rodriguez,

(1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function 27 of the writ is to secure release from illegal custody.”). 28 3 1 the Petition is unexhausted; (4) the Petition is untimely; and (5) Petitioner did 2 not pay the required filing fee or seek leave to proceed in forma pauperis. The 3 Court will address each defect in turn. 4 A. Failure to Use the Court-Approved Form 5 First, the Petition has not been submitted on the form approved by the 6 Central District of California. Rule 2(d) of the Habeas Rules authorizes district 7 courts to require that habeas petitions be filed in a form prescribed by the Local 8 Rules. This Court has such a Local Rule. See Central District Local Civil Rule 9 83-16.1 (“A petition for writ of habeas corpus . . . shall be submitted on the 10 forms approved and supplied by the Court.”). The Petition is subject to 11 dismissal for failure to properly use a Court-approved form. 12 B. Failure to Name a Proper Respondent 13 Second, the Petition fails to name an appropriate respondent. Typically, 14 the proper respondent for a habeas petition is the warden of the facility in 15 which the petitioner is incarcerated. See Stanley v. Cal. Supreme Court, 21

, 360 (9th Cir. 1994) (as amended); see also Rule 2(a), Habeas Rules. 17 The Ninth Circuit has held the failure to name the correct respondent destroys 18 personal jurisdiction. See Ortiz-Sandoval v. Gomez,

(9th Cir. 19 1996) (as amended); Stanley, 21 F.3d at 360. Here, Petitioner names the 20 “Superior Court of California County of Los Angeles” as the respondent, not 21 the warden of the facility where Petitioner is currently incarcerated. 22 C. The Petition Is Unexhausted 23 Third, under

(b), habeas relief may not be granted 24 unless Petitioner has exhausted the remedies available in state courts or an 25 exception to the exhaustion requirement applies. As a matter of comity, a 26 federal court will not entertain a habeas corpus petition unless the petitioner 27 has exhausted the available state judicial remedies on every ground presented 28 4 1 in the petition. See Rose v. Lundy,

(1982). Under 28

(b)(1), a habeas petition brought by a person in state custody 3 “shall not be granted unless it appears that – (A) the applicant has exhausted 4 the remedies available in the courts of the State; or (B)(i) there is an absence of 5 available State corrective process; or (ii) circumstances exist that render such 6 process ineffective to protect the rights of the applicant.” Exhaustion requires 7 that the petitioner’s claims be fairly presented to the state courts and be 8 disposed of on the merits by the highest court of the state. James v. Borg, 24

(9th Cir. 1994); Carothers v. Rhay,

(9th Cir. 10 1979); see also Libberton v. Ryan,

(9th Cir. 2009). A 11 claim has not been fairly presented to a state court unless the petitioner has 12 described both the operative facts and the federal legal theory on which the 13 claim is based. Duncan v. Henry,

(1995) (per curiam); 14 Picard v. Connor,

(1971); Greenway v. Schriro,

(9th Cir. 2011). Petitioner has the burden of demonstrating that he 16 has exhausted his available state remedies. See, e.g., Williams v. Craven, 460

, 1254 (9th Cir. 1972) (per curiam). 18 Here, Petitioner claims he has not appealed his conviction or filed any 19 habeas petitions in the state courts. See Pet. at 5-6.3 As such, the Petition is 20 wholly unexhausted, rendering the Petition subject to dismissal. 21 / / / 22

23 3 The Court notes that California state court records available electronically appear 24 to reflect that Petitioner may have filed several habeas petitions in the California Court of Appeal and California Supreme Court in 2009 and 2010. See Appellate 25 Courts Case Information at https://appellatecases.courtinfo.ca.gov. Petitioner does 26 not identify any of these petitions in the instant Petition. To the extent Petitioner contends he has sought relief in the state courts, Petitioner is directed to provide 27 information regarding those efforts as provided below. 28 5 1 D. The Petition Appears Untimely 2 Because the Petition was filed after the effective date of the Antiterrorism 3 and Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the 4 AEDPA’s one-year statute of limitations, as set forth at

(d). 5 See Soto v. Ryan,

(9th Cir. 2014). Ordinarily, the 6 limitations period runs from the date on which the prisoner’s judgment of 7 conviction “became final by the conclusion of direct review or the expiration of 8 the time for seeking such review.”

(d)(1)(A). Petitioner does 9 not appear to contend that he is entitled to a later trigger date under 28 U.S.C. 10 § 2244(d)(1)(B)-(D), and the Court finds no basis for applying a later trigger 11 date. As such, Section 2244(d)(1)(A) governs in this case. 12 As explained, Petitioner did not appeal his conviction and sentence, 13 entered on December 11, 2008. As a result, the conviction became final on 14 February 9, 2009 – 60 days later – when the time to file an appeal expired. See 15 Cal. R. Ct. 8.308(a); see also Mendoza v. Carey,

(9th Cir. 16 2006). The AEDPA’s one-year limitations period expired one year later on 17 February 9, 2010. Petitioner did not constructively file his Petition until 18 January 31, 2021. Thus, absent tolling, the Petition is untimely by almost 11 19 years. 20 1. Statutory tolling does not render the Petition timely. 21 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year 22 statute of limitations while a ‘properly filed application for State post- 23 conviction or other collateral review with respect to the pertinent judgment or 24 claim is pending.’” Nedds v. Calderon,

(9th Cir. 2012) 25 (quoting

(d)(2)). Statutory tolling does not extend to the time 26 between the date a judgment becomes final and the date the petitioner files his 27 first state collateral challenge because during that time there is no case 28 6 1 “pending.” See Cross v. Sisto,

(9th Cir. 2012). 2 Here, Petitioner attests he filed no state habeas petitions, much less any 3 prior to the running of the AEDPA’s one-year limitations period. Thus, he is 4 entitled to no statutory tolling. 5 2. Equitable tolling does not render the Petition timely. 6 In addition to statutory tolling, the AEDPA’s one-year limitations period 7 also is subject to equitable tolling in appropriate cases. See Holland v. Florida, 8

(2010). In order to be entitled to equitable tolling, the 9 petitioner must show both that: (1) he has been pursuing his rights diligently; 10 and (2) some extraordinary circumstance stood in his way and prevented his 11 timely filing.

(citing Pace v. DiGuglielmo,

(2005)). The 12 Ninth Circuit has held that the Pace standard is consistent with the Ninth 13 Circuit’s “sparing application of the doctrine of equitable tolling.” Waldron- 14 Ramsey v. Pacholke,

(9th Cir. 2009). “The petitioner 15 must show that ‘the extraordinary circumstances were the cause of his 16 untimeliness and that the extraordinary circumstances made it impossible to 17 file a petition on time.’” Porter v. Ollison,

(9th Cir. 2010) (as 18 amended) (quoting Ramirez v. Yates,

(9th Cir. 2009)). 19 Here, Petitioner does not claim entitlement to equitable tolling and the 20 Court has not found any basis to support such a claim. Thus, equitable tolling 21 does not appear to render the Petition timely. 22 E. Petitioner Did Not Pay the Applicable Filing Fee or Seek Leave 23 to Proceed In Forma Pauperis 24 Finally, Petitioner did not pay the $5 filing fee for a federal habeas 25 petition (see

(a)) and did not alternatively file an application 26 to proceed without prepayment of the filing fee (“IFP Application”) as 27 required by

. The Clerk is directed to send Petitioner a form 28 7 1 IFP Application by a person in custody, which Petitioner is required to prepare 2 in full, and obtain any necessary information and certification from staff at the 3 facility where he is incarcerated if he wishes to proceed without prepayment of 4 the filing fee. 5 IV. 6 ORDER 7 Accordingly, based upon the Petition currently submitted, the Petition is 8 untimely by more than 10 years. District courts are permitted to consider, sua 9 sponte, whether a petition is untimely and to dismiss a petition that is untimely 10 on its face after providing the petitioner with the opportunity to be heard. Day 11 v. McDonough,

(2006); Wentzell v. Neven,

(9th Cir. 2012). The Petition also appears unexhausted, does not 13 name a proper respondent, was not accompanied by a proper filing fee or 14 application to proceed in forma pauperis, and was filed on the wrong form. 15 Depending upon Petitioner’s response as directed below, the Court may order 16 further proceedings with respect to the issues of exhaustion, naming the proper 17 respondent, paying filing fees, and using the correct form. 18 Therefore, Petitioner is ORDERED TO SHOW CAUSE why this action 19 should not be dismissed as untimely. By no later than thirty (30) days from 20 the date of this Order, Petitioner shall file a response to this Order. If 21 Petitioner disputes that this action is untimely, he must explain clearly and in 22 detail why it is not untimely, and provide any available competent evidence 23 that establishes the timeliness of this action, including information regarding 24 any habeas petitions he has filed in the state courts. 25 Instead of filing a response to the instant Order, Petitioner may request a 26 voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 27 41(a). The Clerk is directed to provide a Notice of Dismissal form. However, 28 8 1 ||the Court warns any dismissed claims may be subject to the statute of 2 || limitations under Section 2244(d)(1). 3 The Court warns Petitioner that failure to timely file a response to this 4 || Order will result in the Court dismissing this action with prejudice as untimely 5 for failure to prosecute and comply with court orders. See Fed. R. Civ. P. 6 ||41(b). 7 8 || Dated: February 25, 2021 Lf 10 D. EARLY nited States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28