Richard Prendez, Jr. v. Superior Court of California Riverside

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

Present: The Honorable Karen L. Stevenson, United States Magistrate Judge

Gay Roberson N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: n/a Attorneys Present for Respondent: n/a

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

I. The Petition and Current Proceedings

On October 22, 2021, Petitioner, a California state prisoner proceeding pro se, filed a

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Original Petition”). (Dkt.

No. 1.) Petitioner initially filed the Original Petition in the Northern District of California, and the

matter was transferred to the Central District of California on November 18, 2021. (Dkt. No. 6.)

On November 22, 2021, before the Court issued any orders in this case, Petitioner filed the pending

First Amended Petition (“FAP”). (Dkt. No. 10.) The FAP, which is substantially similar to the

Original Petition in all substantive respects, is now the operative pleading.

Although organized differently, both the Original Petition and the FAP assert the same two

grounds for federal habeas relief: (1) Petitioner should not have been sentenced to the high

statutory terms for his offenses; and (2) his trial counsel was ineffective for failing to argue

successfully for a shorter sentence. (Id. at 5-7.)

At the time this matter was transferred from the Northern District, Petitioner already had a

habeas petition pending in this Court raising these two claims. (Id. at 7); see also Richard Prendez

Jr. v. Superior Court of California County of Riverside, EDCV 21-1677-MCS (KS). Accordingly,

on November 23, 2021, this Court issued an Order to Show Cause (“OSC”) why this action should

not be dismissed as duplicative of case no. 21-1677. (Dkt. No. 9.) However, just a day earlier,

Petitioner filed a Notice of Voluntary Dismissal in case no. 21-1677, and that matter is now closed.

See EDCV 21-1677-MCS (KS) at Dkt. No. 4. As the instant action is now Petitioner’s only

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

pending habeas matter before the Court, the original OSC issued on November 23, 2021 is

hereby DISCHARGED. This Order controls all further proceedings at this time.

II. Petitioner’s Prior State Court Proceedings

According to the FAP and Petitioner’s publicly available state court records,1 on August 7,

2015, Petitioner entered a guilty plea in the Riverside Superior Court to willful infliction of

corporal injury, intimidation of a witness, and false imprisonment.2 Petitioner was sentenced to a

term of 16 years, 4 months in state prison (case no. BAF1500052). (Dkt. No. 10 at 23); case docket

available at https://public-access.riverside.courts.ca.gov/OpenAccess/CriminalMainMenu.asp

(“Riverside Superior Court Records”) (last visited Dec. 17, 2021). Petitioner’s Riverside Superior

Court records reflect that Petitioner was sentenced on August 11, 2015. Petitioner does not provide

a case number or any other information indicating that he appealed his judgment of conviction,

and his available, on-line state court records do not reflect any direct appeal to his conviction or

sentence having been filed. Cases available at https://appellatecases.courtinfo.ca.gov (last visited

Dec. 17, 2021).

Petitioner’s first postconviction filing in any court was a habeas petition filed in the

California Court of Appeal, Third Appellate District, on January 11, 2021 (case no. C093337).

That petition, which appears to have concerned a prison disciplinary matter and not Petitioner’s

underlying conviction, was denied on January 15, 2021, for the failure to exhaust administrative

remedies. Id.

On April 6, 2021, Petitioner made what appears to be an oral motion in the trial court to

modify his sentence under California Penal Code §1170(d). The court denied the motion on the

same day. (Riverside Superior Court Records for case no. BAF1500052.)

1 Federal courts may take judicial notice of relevant state court records in federal habeas proceedings. See

Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2001), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005); Williams v. Jacquez, No. CV 9-2703-DSF (DTB), 2010 WL 1329585, at *2 (C.D. Cal. Feb. 22, 2010)

(taking judicial notice in § 2254 habeas case of California state court appellate records).

2 The FAP reflects February 10, 2015 as Petitioner’s date of conviction. (Dkt. No. 10 at 2.) However,

Petitioner’s Riverside Superior Court records establish that Petitioner was charged on February 10, 2015, and that

he was ultimately convicted of the charges on August 7, 2015.

3 For ease of reference, the Court cites to the page numbers assigned by the Court’s Electronic Case Filing

System.

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

Petitioner appealed the superior court’s denial of his motion to modify his sentence to the

California Court of Appeal, Fourth Appellate District, Division Two, on April 19, 2021 (case no.

E076932). That petition was summarily denied on April 30, 2021. Case available at

https://appellatecases.courtinfo.ca.gov (last visited Dec. 17, 2021).

Petitioner filed a habeas petition in the California Supreme Court – his only filing in that

court to-date – on April 19, 2021 (case no. S268327). That petition was denied on July 21, 2021.

(Id.)

III. Habeas Rule 4

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 (“Habeas Rules”), requires the Court to dismiss a petition without ordering a

responsive pleading where “it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress’s intent for the district courts to

take an active role in summarily disposing of facially defective habeas petitions. Boyd v.

Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). However, a district court’s use of this summary

dismissal power is not without limits. Id. at 1128.

A habeas court must give a petitioner notice of the defect and the consequences for failing

to correct it as well as an opportunity to respond to the argument for dismissal. Boyd, 147 F.3d at

1128. Accordingly, for the reasons outlined below, the Court notifies Petitioner that the FAP

is subject to dismissal because it is facially untimely. To discharge this Order and avoid

dismissal, Petitioner, no later than January 17, 2021, must file a Second Amended Petition

that establishes that this action is timely.

IV. The FAP is Facially Untimely

The FAP is subject to summary dismissal because it is facially untimely. The Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this action,

establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28

U.S.C. § 2244(d)(1). The “statutory purpose” of the one-year limitations period is to “encourag[e]

prompt filings in federal court in order to protect the federal system from being forced to hear stale

claims.” Carey v. Saffold, 536 U.S. 214, 226 (2002). The one-year limitations period is subject

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

to a statutory tolling provision, which suspends it for the time during which a “properly-filed”

application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. §

2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in certain

“extraordinary circumstances” beyond a prisoner’s control, equitable tolling may be available to

toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645-49 (2010).

The section 2244(d)(1) limitations period is triggered and begins to run from the latest of:

(A) the date on which the underlying judgment became final through either the

conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which any impediment to the filing of a federal petition created

by unconstitutional state action is removed;

(C) the date on which a newly recognized and retroactively applicable

constitutional right was first recognized by the United States Supreme Court; or

(D) the date on which the factual predicate underlying a claim could have been

discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

In most cases, the commencement of a state prisoner’s limitations period will be governed

by section 2244(d)(1)(A). See Dodd v. United States, 545 U.S. 353, 357 (2005). Here, there ae

no facts articulated on the face of the FAP or attached exhibits that would trigger any alternative

commencement date under section 2244(d)(1).

As stated above, Petitioner was sentenced in the trial court on August 11, 2015. Petitioner

does not allege, and there are no facts to indicate, that he filed a direct appeal of his conviction and

sentence. Therefore, for purposes of AEDPA’s statute of limitations, Petitioner’s conviction

became final on November 9, 2015, sixty days after Petitioner was required to file with the trial

court a notice of appeal and statement challenging the legality of his plea proceeding for issuance

of a certificate of probable cause. See Cal. R. Ct. 8.304(b)(1); 8.308(a). Petitioner does not allege,

and his state court records do not reflect, that he ever made these filings in the trial court within

the 60-day period. Thus, for purposes of § 2244(d)(1)(A), Petitioner’s limitations period

commenced on November 10, 2015, and expired on November 10, 2016. See 28 U.S.C. §

2241(d)(1)(A); Patterson, 251 F.3d at 1246.

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

Moreover, it appears that Petitioner is not entitled to statutory tolling. As noted above,

Petitioner waited to file any motion or petition in the state courts challenging his conviction or

sentence until April 6, 2021, nearly four and a half years after the AEDPA limitations period

expired. Therefore, none of Petitioner’s postconviction filings in the state courts qualify for

statutory tolling. See Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (“because [petitioner]

did not file his first state petition until after his eligibility for federal habeas had already lapsed,

statutory tolling cannot save his claim”); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)

(“section 2244(d) does not permit the reinitiation of the limitations period that has ended before

the state petition was filed.”).

Further, Petitioner does not allege, and there are no facts or evidence to indicate, that

Petitioner is entitled to equitable tolling. Petitioner has not alleged any extraordinary

circumstances that prevented him from timely filing this action nor has he established diligence in

pursuing his rights. See Holland, 560 U.S. at 645 (a habeas petitioner is entitled to equitable tolling

only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing”) (emphasis added)

(internal quotation marks and citation omitted).

The Original Petition, filed on October 22, 2021, missed the November 10, 2016 AEDPA

deadline by nearly five years – rendering the FAP subject to dismissal under Habeas Rule 4.

V. Conclusion and Order

In sum, it is apparent from the FAP and available state court records that Petitioner is not

entitled to relief because this action is untimely. Consequently, the FAP is subject to summary

dismissal under Habeas Rule 4. Nevertheless, in the interests of justice, the Court grants Petitioner

the opportunity to correct these defects by filing a Second Amended Petition that establishes that

this action is timely.

IT IS THEREFORE ORDERED that, to discharge this Order and avoid dismissal,

Petitioner, no later than January 17, 2022, shall file a Second Amended Petition that does all

of the following:

CIVIL MINUTES – GENERAL

Case No. EDCV 21-1970-MCS (KS) Date: December 17, 2021

Title Richard Prendez, Jr. v. Superior Court of California Riverside

(1) Clearly identifies the state court judgment or proceeding that Petitioner is

challenging;

(2) Asserts claims solely arising under “the Constitution, laws, or treaties of the

United States”;

(3) Clearly identifies the date on which the statute of limitations began to run on

Petitioner’s claims;

(4) Establishes that the Petition is timely.

Alternatively, Petitioner may file a signed document entitled “Notice of Voluntary

Dismissal” if he no longer wishes to proceed with this action.

The Clerk is directed to send Petitioner a copy of the Central District’s form habeas

petition.

IT IS SO ORDERED.

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