1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CECIL JEROME HATCHETT, Case No. 24-cv-03246-KAW

8 Petitioner, ORDER REQUIRING PETITIONER 9 v. TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA 10 KEN CLARK, PAUPERIS 11 Respondent. Re: Dkt. No. 8

12 13 Petitioner, a prisoner at Mule Creek State Prison, filed this pro se petition in the Eastern 14 District of California for a writ of habeas corpus pursuant to

challenging his 15 sentence in Monterey County Superior Court. The case was transferred to this district. The 16 petition is now before the Court for review pursuant to

and Rule 4 of the Rules 17 Governing Section 2254 Cases in the United States District Courts. Petitioner is granted leave to 18 proceed in forma pauperis. ECF 8. 19 BACKGROUND 20 According to the petition, petitioner was convicted of sodomy on an inmate and sentenced 21 to 55 years to life in Monterey County Superior Court in 2003 in case number SS990255. ECF 1 22 at 1. 23 The California Court of Appeal in petitioner’s second appeal explained that he was 24 originally sentenced in or around the year 2000, after a bench trial, to five consecutive terms of 50 25 years to life and a five-year serious-felony enhancement. People v. Hatchett, No. H024371, 2003

, at *1 (Cal. Ct. App. May 6, 2003). After his first appeal, the California Court of 27 Appeal remanded his case for resentencing in 2001 because the trial court erred in imposing 1 concurrent indeterminate terms of 50 years to life (as well as a shorter concurrent term) and a five- 2 year enhancement for a total of 55 years to life.

Petitioner appealed again. On May 6, 2003, 3 the California Court of Appeal upheld petitioner’s new sentence and modified the judgment to 4 include the restitution and required AIDS testing originally imposed by the trial court. 5 Petitioner appears to have filed numerous habeas petitions in both state and federal court in 6 the years since 2003. On February 8, 2016, for example, another judge in this district dismissed a 7 prior petition challenging the 2003 resentencing as untimely. Hatchett v. Gonzalez, No. C 15- 8 2959 WHA (PR),

, at *1 (N.D. Cal. Feb. 8, 2016). The court noted that 9 petitioner filed a state habeas petition in 2015 which was denied by the California Supreme Court 10 prior to the Northern District filing. 11 In the instant petition, petitioner alleges that “the court at sentencing could have given 12 petitioner 15 to life or 55 to life” and “opted for the higher 55 to life term based on petitioner’s 13 classification score of some 288 points” and 48 rules violations by the year 2000, which petitioner 14 alleges were falsely procured. ECF 1 at 7-8. Petitioner alleges that his due process rights were 15 violated, and he was subjected to entrapment.

. 16 DISCUSSION 17 A. Standard of Review 18 This court may entertain a petition for writ of habeas corpus “on behalf of a person in 19 custody pursuant to the judgment of a state court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.”

(a); Rose v. 21 Hodges,

(1975). A district court shall “award the writ or issue an order directing 22 the respondent to show cause why the writ should not be granted, unless it appears from the 23 application that the applicant or person detained is not entitled thereto.”

. 24 B. Analysis 25 The petition appears to be untimely as well as second or successive. Petitions filed by 26 prisoners challenging noncapital state convictions or sentences must be filed within one year of the 27 latest of the date on which: (A) the judgment became final after the conclusion of direct review or 1 unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the 2 constitutional right asserted was recognized by the Supreme Court, if the right was newly 3 recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the 4 factual predicate of the claim could have been discovered through the exercise of due diligence. 5

(d)(1). Petitioner’s conviction became final on June 12, 2003, and any state 6 habeas petitions he filed after expiration of the limitations period would not have entitled him to 7 any tolling. See

at *1. Petitioner has not identified any impediment to filing 8 that was removed, any new retroactive constitutional right, or any new facts. 9 The petition also appears to be second or successive.

(b) prohibits the 10 filing of a second or successive petition unless it is a claim that was not included in the prior 11 petition because it relies on a new retroactive constitutional law, or the factual predicate for the 12 claim could not have previously been discovered and the new facts demonstrate that the petitioner 13 is innocent. In addition, authorization from the court of appeals is required for a federal district 14 court to consider a second or successive petition.

(b)(3). Petitioner has not 15 identified any grounds for a second or successive petition, nor received authorization from the 16 Ninth Circuit. 17 C. Order to Show Cause 18 Accordingly, the Court orders petitioner to show cause, within twenty-eight (28) days of 19 the date of this order, why his petition for a writ of habeas corpus should not be DISMISSED as 20 untimely pursuant to

(d)(1) and/or second or successive pursuant to § 2244(b). If 21 petitioner does not respond within the given time or cannot demonstrate that his petition is both 22 timely and not barred as second or successive, the case will be referred to a district court judge 23 with the recommendation that it be dismissed. 24 CONCLUSION 25 For the foregoing reasons, the Court orders as follows. 26 1. Petitioner’s request to proceed in forma pauperis is granted. ECF 8. 27 2. Within twenty-eight (28) days of the date of this order, petitioner shall show cause 1 exhaust state court remedies as required by

(b), and/or as untimely pursuant to 28 2 USS.C. § 2244(d)(1). 3 This order terminates docket number 8. 4 IT IS SO ORDERED. 5 || Dated: July 31, 2024 . 6 A. Lui 7 United States Magistrate Judge 8 9 10 ll a 12

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