Opinion

Court: District Court, C.D. California
Filed: Feb 25, 2026
Cited by: 0 cases
Authority: More cited than 41.3%

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JEROME EUGENE KELLLY, Case No. 8:25-cv-02843-FWS-PD

Petitioner, ORDER (1) TO SHOW CAUSE

WHY PETITION SHOULD

14 NOT BE DISMISSED AND (2)

TO FILE COMPLETED

E. MEJIA,

15 DECLARATION IN SUPPORT

16 Respondent. OF REQUEST TO PROCEED

IN FORMA PAUPERIS OR

17 PAY FILING FEE

20 On December 9, 2025, Petitioner Jerome Eugene Kelly, proceeding pro

21 se, constructively filed a Petition for Writ of Habeas Corpus by a Person in

22 State Custody pursuant to 28 U.S.C. § 2254, asserting two grounds for relief. 1

1 Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner

25 constructively files something on the day he gives it to prison authorities for

forwarding to the relevant court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th

26 Cir. 2010). Courts presume that is the day the prisoner signs the document unless

there is evidence to the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th

Cir. 2014) (per curiam) (as amended). Here, Petitioner apparently signed the

28 Petition on December 9, 2025. The Court therefore uses that date as the Petition’s

1 The Court orders Petitioner to show cause why the Petition should not be

2 dismissed because, on its face, it suggests that both claims are untimely and

3 that one of the claims is both not cognizable on federal habeas review and

4 unexhausted. The Court also orders Petitioner to either file a completed

5 declaration in support of his request to proceed in forma pauperis or pay the

6 appropriate filing fee.

7 I. Procedural History and Petitioner’s Contentions

8 A. Trial and Direct Appeal

In July 2011, an Orange County Superior Court jury found Petitioner

guilty of kidnapping, kidnapping to commit a sex offense, forcible oral

11 copulation, and two counts of forcible sodomy. See Kelly v. Lizarraga, No.

12 8:15-cv-00263-GW-PJW, Dkt. No. 20 at 1 (C.D. Cal. filed on Feb. 13, 2015).2

13 After he was found to have been previously convicted of a strike under

14 California’s Three Strikes law, he was sentenced to 120 years to life in prison.

15 See id. at 2.

16 Petitioner appealed, and on September 13, 2013, the California Court of

17 Appeal modified his sentence but otherwise affirmed. See id., Dkt. No. 16-13.

18 He sought review in the California Supreme Court, which denied review on

19 November 26, 2013. See Cal. App. Cts. Case Info., available at http://

20 appellatecases.courtinfo.ca.gov/ (search case no. S214165) (last visited Feb.

21 24, 2026).

LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to state habeas

25 petitions).

26 2 As related below, Petitioner has previously filed a federal habeas petition

challenging his 2011 state-court convictions. The Court takes judicial notice of that

petition as well as the relevant filings and lodgments in connection with that case.

28 See Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012); Fed. R. Evid.

1 B. Prior Federal Habeas Petition

This is not the first federal habeas petition that Petitioner has filed

challenging his 2011 state-court convictions and sentence. On February 13,

2015, he filed his first one, which was denied with prejudice on its merits on

January 17, 2017. See Kelly, Dkt. Nos. 20, 23-24.

C. Subsequent State-Court Proceedings

8 One of the Petition’s grounds for relief concerns Petitioner’s sentence.

9 More than six years after the original sentencing, the Correctional Case

10 Records Manager sent a letter to the trial court indicating that Petitioner’s

11 abstract of judgment was incorrect. See Dkt. No. 1 at 29. On March 3, 2021,

12 the trial court “corrected” Petitioner’s sentence by ordering that he be

13 sentenced to 100 years to life plus five years. However, no resulting abstract

14 of judgment was ever issued.3 See id. at 30.

15 The Petition’s other ground for relief concerns the California Racial

16 Justice Act (“CRJA”), which became effective on January 1, 2021. See Rose v.

17 Warden, No. 2:22-cv-08155-DOC(LAL), 2023 WL 9601243, at *9 (C.D. Cal.

18 Dec. 23. 2023). The CRJA prohibits the state from “seek[ing] or obtain[ing] a

19 criminal conviction or seek[ing], obtain[ing], or impos[ing] a sentence on the

20 basis of race, ethnicity, or national origin.” Cal. Penal Code § 745(a).

21 Although it initially applied only to convictions that were not yet final before

22 its effective date, it was amended on January 1, 2023, to provide that,

23 beginning on January 1, 2024, petitioners may challenge sentences regardless

24 of when their judgments became final. See Cal. Penal Code § 745(j)(3); see

25 also Assemb. Bill 256, 2022 Cal. Legis. Serv. Ch. 739 § 2.

28 3 The Court derives this information from the documents that Petitioner attached to

1 In March 2024, Petitioner filed a habeas petition in superior court,

2 alleging a CRJA violation, and on March 27, 2024, the superior court denied

3 it. See Dkt. No. 1 at 3-4. On May 14 and May 29, 2024, he filed motions

4 under California Penal Code section 745(d) seeking discovery to establish a

5 potential CRJA violation, and the superior court denied both. See Cal. App.

6 Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for case no.

7 G064535) (last visited Feb. 24, 2026). Petitioner appealed, and on September

8 26, 2024, the California Court of Appeal dismissed the appeal. See id.

9 On August 21, 2024, he filed a habeas petition in the California

10 Supreme Court, alleging violations of the CRJA and seeking discovery to

11 support those claims. See Cal. App. Cts. Case Info., available at http://

12 appellatecases.courtinfo.ca.gov/ (search for case no. S286529) (last visited Feb.

13 24, 2026). On August 27, 2025, the California Supreme Court denied the

14 petition without prejudice, noting that it had granted review in a case that

15 might affect the availability of discovery under the CRJA, which in turn might

16 affect Petitioner’s ability to plead such claims.4 See id.

17 D. The Instant Petition

On December 9, 2025, Petitioner constructively filed the instant

Petition. Liberally construed, see Woods v. Carey, 525 F.3d 886, 889-90 (9th

Cir. 2008) (district courts are obligated to liberally construe pro se litigant

filings), the Petition states the following two grounds for relief: (1) the

prosecutor racially discriminated against Petitioner, an African American, by

charging him with offenses that would not have been brought against a white

4 On June 27, 2024, Petitioner filed a request for resentencing in the superior court,

26 which denied it. See Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/

(search for case no. G064664) (last visited Feb. 24, 2026). He appealed, and on

October 31, 2024, the court of appeal dismissed the appeal. See id. It does not

28 appear that those proceedings bore any relation to Petitioner’s state-court CRJA-

1 defendant; and (2) Petitioner’s sentence is improper because the trial court

2 failed to enter an abstract of judgment after amending his sentence. See Dkt.

3 No. 1 at 5-9.

4 II. Discussion

5 A. The Petition Appears Subject to Dismissal

6 1. Duty to Screen

Rule 4 of the Rules Governing § 2254 Cases requires the Court to

conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court

must summarily dismiss a petition “[i]f it plainly appears from the face of the

petition . . . that the petitioner is not entitled to relief in the district court.”

Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908

F.2d 490 (9th Cir. 1990). Rule 4 permits courts to dismiss claims that are

“untimely,” clearly not cognizable,” or unexhausted. Neiss v. Bludworth, 114

F.4th 1038, 1041, 1045 (9th Cir. 2024) (citations omitted).

As explained below, a review of the Petition suggests that both of its

claims are untimely and that its second claim is not cognizable and is

unexhausted.5

2. The Petition Appears to Be Facially Untimely

a) The Limitation Period

21 The AEDPA imposes a one-year period of limitation for state prisoners

23 5 The Court does not address whether the Petition is second or successive because

Petitioner’s submissions – which the Court presumes to be true – indicate that the

trial court entered an intervening judgment after his first federal habeas petition

25 was denied. See Dkt. No. 1 at 29-30; Brown v. Muniz, 889 F.3d 661, 667 (9th Cir.

2018) (claim in second petition is not successive “if it is based on an intervening

26 state court judgment . . . notwithstanding that the same claim . . . could have been

brought in the first petition”). However, the Court makes no definitive finding on

that issue. Should Petitioner’s response be sufficient to discharge this order to show

28 cause, nothing in this order precludes Respondent from arguing that the Petition is

1 to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The

2 one-year limitations period runs from the latest of the four following dates:

(A) the date on which the judgment became final by the

4 conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

7 Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

initially recognized by the Supreme Court, if the right has

10 been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

12 (D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

13 exercise of due diligence.

28 U.S.C. §§ 2244(d)(1)(A)-(D). The Ninth Circuit has held that “the

judgment from which the AEDPA statute of limitations runs is the one

pursuant to which the petitioner is incarcerated.” Smith v. Williams, 871

F.3d 684, 687 (9th Cir. 2017).

Here, the California Supreme Court denied Petitioner’s petition for

review on November 26, 2013. See Cal. App. Cts. Case Info., available at

http://appellatecases.courtinfo.ca.gov/ (search case no. S214165) (last visited

Feb. 24, 2026). That conviction became final 90 days later, see Zepeda v.

Walker, 581 F.3d 1013, 1016 (9th Cir. 2009), but his sentence was evidently

amended on March 3, 2021, see Dkt. No. 1 at 30. As such, he is incarcerated

pursuant to the resulting judgment. See Marquez v. McDaniel, 729 F. App’x

583, 584 (9th Cir. 2018) (“Where an amended or corrected judgment is

entered, . . . the one-year [statute of limitations] period runs from the date of

the amended judgment.”). He did not appeal, see Cal. App. Cts. Case Info.,

1 http://appellatecases.courtinfo.ca.gov/ (search for “Jerome” with “Eugene” and

2 “Kelly”) (last visited Feb. 24, 2026), and consequently his judgment became

3 final 60 days later, on May 3, 2021, see Cal. R. Ct. 8.308(a) (notice of appeal

4 must be filed within 60 days of judgment); Caspari v. Bohlen, 510 U.S. 383,

5 390 (1994) (state conviction and sentence become final when availability of

6 direct appeal has been exhausted and time for filing petition for writ of

7 certiorari has elapsed or timely filed petition has been denied).6 The

8 limitation period for seeking federal habeas relief, therefore, ended one year

9 later, on May 3, 2022. See § 2244(d).

10 Petitioner constructively filed the instant Petition over three years after

11 that deadline, on December 9, 2025. See Dkt. No. 1 at 12. He does not

12 contend that he is entitled to a later trigger date of the limitation period

13 under § 2244(d)(1)(B) or (C), and no such basis is apparent to the Court. To

14 the contrary, Petitioner was aware of the facts underlying the Petition’s first

15 ground for relief when he was charged with the crimes leading to his

16 convictions, see Dkt. No. 1 at 5-8 (alleging racial discrimination because no

17 evidence supported the charges against him),7 and he was aware of the facts

19 6 Petitioner could not have filed a petition for writ of certiorari concerning his new

sentence in the U.S. Supreme Court because he did not appeal to the highest state

20 court. See 28 U.S.C. § 1257(a); Sup. Ct. R. 13(1).

7 Giving Petitioner every benefit of the doubt, the Court construes the Petition’s first

22 ground for relief as alleging that the prosecutor violated due process by racially

discriminating against Petitioner. See Dkt. No. 1 at 5-8. To the extent it solely

23 alleges a CRJA violation, that claim is arguably not barred by the statute of

limitations but nevertheless fails because it is not cognizable on federal habeas

review. See Whitaker v. Horn, No. 2:25-CV-0747 TLN CSK P, 2025 WL 1807056, at

25 *4 (E.D. Cal. July 1, 2025) (claim alleging CRJA violation was not cognizable on

federal habeas review; collecting cases); Wynn v. Foulk, No. 20-cv-00181-SI, 2021

26 WL 6135325, at *4 (N.D. Cal. Dec. 29, 2021) (holding that petitioner was not entitled

to relief under the CRJA because federal habeas court only has “authority to review

violations of federal law, not claims arising under state statutory law”); see also

28 Maddox v. Andre, No. 5:22-cv-00803-FLA-SHK, 2023 WL 3432124, at *2 n.4 (C.D.

1 concerning his second ground for relief no later than April 6, 2021, see id. at

2 30 (reflecting that private counsel informed Petitioner on Apr. 6, 2021, that

3 abstract of judgment concerning amended sentence had not been entered).

4 Consequently, the present action is untimely unless he is entitled to statutory

5 or equitable tolling of the limitation period or he shows that a fundamental

6 miscarriage of justice would result if the Court does not address the merits of

7 his claims.

8 b) Statutory Tolling

The one-year limitation period is “statutorily tolled” while a “properly

filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

The statute is not tolled between the time a final decision is issued on direct

review and the time the first state collateral challenge is filed, because there

is no case “pending” during that time. See Nino v. Galaza, 183 F.3d 1003,

1006 (9th Cir. 1999). However, the statute is tolled for the time during which

a state prisoner is attempting, through proper use of state court procedures,

to exhaust state court remedies regarding a particular post-conviction

application. Once an application for post-conviction review commences, it is

“pending” until a petitioner “complete[s] a full round of [state] collateral

review.” Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing

Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)).

Here, statutory tolling does not render the Petition timely. Petitioner’s

sentence was amended on March 3, 2021, and he did not constructively file a

state-court habeas petition until March 14, 2024, see Dkt. No. 1 at 3. As such,

neither that petition nor any of his subsequent state-court petitions could

have tolled the limitation period because it had already expired. See Ferguson

28 was unexhausted and noting that “exhaustion would be futile because only a state-

1 v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not

2 permit the reinitiation of the limitations period that has ended before the

3 state petition was filed.”).

4 c) Equitable Tolling

The one-year limitations period is subject to equitable tolling in

appropriate cases. See Holland v. Florida, 560 U.S. 631, 645 (2010). “[T]he

7 threshold necessary to trigger equitable tolling is very high, lest the

8 exceptions swallow the rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.

9 2006) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). To

10 qualify, a petitioner has the burden to demonstrate (1) that he has been

11 pursuing his rights diligently, and (2) that an “extraordinary circumstance”

12 stood in his way that prevented him from timely filing. Holland, 560 U.S. at

13 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

14 To show “extraordinary circumstances,” a petitioner must show that

15 “the circumstances that caused his delay are both extraordinary and beyond

16 his control” – a high threshold. Menominee Indian Tribe of Wisconsin v.

17 United States, 577 U.S. 250, 255 (2016). In addition, a petitioner must show

18 that the extraordinary circumstances caused the untimely filing of his habeas

19 petition. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing

20 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)); see also Smith v. Davis,

21 953 F.3d 582, 595 (9th Cir. 2020) (“Whether an impediment caused by

22 extraordinary circumstances prevented timely filing is a ‘causation

23 question.’”).

24 To demonstrate that he has been pursuing his rights diligently, a

25 petitioner must show that he has “been reasonably diligent in pursuing his

26 rights not only while an impediment to filing caused by an extraordinary

27 circumstance existed, but before and after as well, up to the time of filing his

28 claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when

1 [the petitioner] is free from the extraordinary circumstance, he must also be

2 diligent in actively pursuing his rights.” Id. at 599. Because Petitioner must

3 show diligence before, during, and after extraordinary circumstances

4 prevented him from filing, see Smith, 953 F.3d at 598-99, he must show

5 diligence during the period from May 4, 2021, the day the statute of

6 limitations began to run, see Patterson v. Stewart, 251 F.3d 1243, 1246 (9th

7 Cir. 2001) (holding that AEDPA limitation period begins running day after

8 triggering event), to December 9, 2025, the day he constructively filed the

9 Petition, see Dkt. No. 1 at 12.

10 Here, Petitioner has alleged no facts that could warrant equitable

11 tolling. Accordingly, the Petition appears to be untimely, and it can proceed

12 only if Petitioner can make a sufficient showing that he is actually innocent

13 under Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569

14 U.S. 383 (2013).

15 d) Actual Innocence

“[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass . . . [despite] the impediment [of] . . . expiration of the

statute of limitations.” McQuiggin, 569 U.S. at 386; see also Lee v. Lampert,

653 F.3d 929, 934–37 (9th Cir. 2011) (en banc). But “tenable actual-innocence

gateway pleas are rare.” McQuiggin, 569 U.S. at 386. The Schlup standard is

“demanding” and “permits review only in the ‘extraordinary’ case.” House v.

Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327). The evidence

of actual innocence must be “so strong that a court cannot have confidence in

the outcome of the trial unless the court is also satisfied that the trial was free

of nonharmless constitutional error.” Schlup, 513 U.S. at 316.

In particular, the petitioner must “support his allegations of

constitutional error with new reliable evidence – whether it be exculpatory

1 scientific evidence, trustworthy eyewitness accounts, or critical physical

2 evidence” – showing that “a constitutional violation has probably resulted in

3 [his] conviction.” Id. at 324, 327 (citation omitted) (recognizing that

4 “[b]ecause such evidence is obviously unavailable in the vast majority of cases,

5 claims of actual innocence are rarely successful”). “New” evidence is “relevant

6 evidence that was either excluded or unavailable at trial.” Id. at 327-28;

7 Chestang v. Sisto, 522 F. App’x 389, 391 (9th Cir. 2013) (explaining that

8 “actual innocence claims focus on ‘new’ evidence – i.e., ‘relevant evidence that

9 was either excluded or unavailable at trial’” (quoting Schlup, 513 U.S. at 327-

10 28)). Once a petitioner presents such evidence, the habeas court must

11 consider “all the evidence, old and new, incriminating and exculpatory,

12 admissible at trial or not.” Lee, 653 F.3d at 938 (citing House, 547 U.S. at

13 538). In sum, the petitioner must show that “it is more likely than not that no

14 reasonable juror would have convicted him in light of the new evidence.”

15 Schlup, 513 U.S. at 327.

16 Here, Petitioner has failed to show that he is actually innocent of any of

17 the crimes underlying his current incarceration. He provides no new evidence

18 suggesting as much. Instead, he alleges that there was insufficient evidence

19 to support any of the charged counts and notes that some of the victims

20 provided inconsistent testimony. See Dkt. No. 1 at 6. But those allegations –

21 even if they were true – are not sufficient to meet Schlup’s demanding

22 standard. See Bousley v. United States, 523 U.S. 614, 623 (1998) ( “‘[A]ctual

23 innocence’ means factual innocence, not mere legal insufficiency.”); Garcia v.

24 Long, No. ED CV 12-1201-DMG (RZ), 2012 WL 7807309, at *5 (C.D. Cal. Oct.

25 26, 2012) (petitioner could not show that failure to consider merits of

26 sufficiency-of-evidence claim would result in fundamental miscarriage of

27 justice under Schlup when he merely argued that “the prosecutor failed to

28 introduce sufficient evidence to support his conviction”), accepted by 2013 WL

1 1247710 (C.D. Cal. Mar. 26, 2013).

2 Accordingly, it appears that the Petition is time-barred and should be

3 dismissed.

4 3. The Petition’s Second Ground For Relief Does Not

Appear to Present a Cognizable Federal Habeas

5 Claim

AEDPA limits federal habeas corpus relief to claims that “a petitioner

has been convicted or sentenced in violation of the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 2254(a). This means that relief is

not available for errors in the interpretation or application of state law. See

Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Waddington v. Sarausad, 555

U.S. 179, 192 n.5 (2009) (“It is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”).

“Absent a showing of fundamental unfairness, a state court’s

misapplication of its own sentencing laws does not justify federal habeas

relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). “A habeas

petitioner must show that an alleged state sentencing error was ‘so arbitrary

or capricious as to constitute an independent due process violation.’” Nelson

v. Biter, 33 F. Supp. 3d 1173, 1177 (C.D. Cal. 2014) (quoting Richmond v.

Lewis, 506 U.S. 40, 50 (1992)).

Here, Petitioner’s second ground for relief does not appear to be

cognizable. Although he seeks an order from the trial court “correct[ing]” his

sentence, the trial court evidently has already done that. See Dkt. No. 1 at 30.

Moreover, he does not allege that the resulting sentence is illegal or

unconstitutional. Indeed, the only error that he identifies is the trial court’s

alleged failure to ensure that an abstract of judgment was entered reflecting

the amendment to his sentence that the trial court made on March 3, 2021.

See Dkt. No. 1 at 5, 9. This claim is not cognizable because, in California, the

1 judgment of conviction is the “oral pronouncement” at sentencing. People v.

2 Mesa, 14 Cal. 3d 466, 472 (1975). “The ‘abstract of judgment’ is the clerk’s

3 official recitation of the oral judgment of conviction, which must be provided

4 to the state prison official charged with executing the judgment.” Gonzalez,

5 873 F.3d at 770 (citing Cal. Penal Code § 1213(a)). But the “abstract of

6 judgment is not the judgment of conviction.” People v. Mitchell, 26 Cal. 4th

7 181, 185 (2001). Thus, Petitioner’s claim does not challenge his judgment;

8 rather, it concerns the ministerial task of entering the abstract of judgment.

9 Petitioner alleges no facts to show how the alleged failure to enter the

10 abstract of judgment establishes a due process violation.

11 4. The Petition’s Second Ground for Relief Appears to

Be Unexhausted

13 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a

14 petitioner has exhausted the remedies available in state court. Exhaustion

15 requires that the petitioner’s contentions were fairly presented to the state

16 courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of

17 on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d

18 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not

19 entertain a habeas petition unless the petitioner has exhausted the available

20 state judicial remedies on every ground presented in it. See Rose v. Lundy,

21 455 U.S. 509, 518-19 (1982).

22 Here, the Petition’s second ground for relief concerning the failure to

23 enter an abstract of judgment appears to be unexhausted. Petitioner did not

24 allege it in the habeas petition that he filed in the superior court. See Dkt.

25 No. 1 at 3-4. And a review of the California Appellate Courts website

26 indicates that he did not allege it in any of the appeals or habeas petitions he

27 filed in the California Court of Appeal or the California Supreme Court. See

28 Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for

1 “Jerome” with “Eugene” and “Kelly”) (last visited Feb. 24, 2026) (reflecting

2 that Petitioner’s appeals and habeas petitions asserted only claims concerning

3 alleged CRJA violation as well as one petition seeking resentencing under

4 Cal. Penal Code § 1172.1 and Assemb. Bill No. 600).

5 Accordingly, the claim appears to be unexhausted.

6 B. Petitioner’s Declaration In Support of Request to Proceed

In Forma Pauperis

8 On December 15, 2025, Petitioner filed a Declaration in Support of

9 Request to Proceed In Forma Pauperis. See Dkt. No. 2. However, he did not

10 sign or complete the entire form, instead submitting only one page of the two-

11 page form. See id. As a result, the Court cannot determine whether granting

12 Petitioner’s request is warranted.

13 Accordingly, Petitioner is ORDERED to submit a fully completed form

14 or pay the appropriate filing fee. The Clerk is directed to provide Petitioner

15 with the correct form along with this Order.

16 III. Conclusion

For the foregoing reasons, the Court ORDERS Petitioner to show cause

by no later than March 18, 2026, as to why the Petition should not be

dismissed because it is untimely, alleges a claim that is not cognizable on

federal habeas review, and is partially unexhausted.

As to whether the entire Petition is timely, if Petitioner contends that

he is entitled to tolling of any kind or a later start date for the limitation

period, he must allege specific facts to support those contentions and provide

any reasonably available supporting documentation. If he maintains that he

is actually innocent, he must allege additional specific facts beyond those in

the Petition to support that contention and provide any reasonably available

supporting documentation.

1 As to the Petition’s second ground for relief, Petitioner must explain

2 || how the claim is cognizable and when and how he exhausted it in state court.

3 || If he contends that the Petition’s second ground for relief is cognizable but

4 || unexhausted, he may file a formal stay-and-abey motion under Rhines v.

5 || Weber, 544 U.S. 269 (2005), if he believes he can make the required

6 || showings.®

7 The Court also orders Petitioner, by no later than March 18, 2026, to

8 || either submit a fully completed and signed Declaration in Support of Request

9 || to Proceed In Forma Pauperis or pay the appropriate filing fee of $5.00.

10 Petitioner is admonished that the Court will construe his failure to

11 || comply with this Order by March 18, 2026, as a concession on his part that

12 || the Petition should be dismissed as untimely or for failure to pay the filing fee

13 || or request to proceed in forma pauperis. In that event, the Court will

14 || recommend that the Petition be dismissed, either with prejudice as untimely

15 || or without prejudice for failure to pay the filing fee or request to proceed in

16 || forma pauperis.

17 IT IS SO ORDERED.

18 | DATED: February 25, 2026 .

19 Palas Mrnakoe_

20 □□□□□□□□□□□□□□□□□□□□□□□□□

2] UNITED STATES MAGISTRATE JUDGE

5 Under Fhines, Petitioner can obtain a stay while he exhausts his state remedies if

25 || he shows the following: (1) there is good cause for his failure to earlier exhaust the

claim in state court; (2) the unexhausted claim is not “plainly meritless”; and (3) he

26 || has not engaged in “abusive litigation tactics or intentional delay.” 544 U.S. at 277-

78. Preliminarily, it appears Petitioner would be unable to satisfy the first and

27 second elements of Rhines, although the Court makes no definitive finding on that

2g || issue at this point.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.