The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PENI JR. SIULUA, Case No.: 25cv2266-AJB(LR)
12 Petitioner,
REPORT AND
13 v. RECOMMENDATION FOR ORDER
GRANTING RESPONDENTS’
14 O’BRIAN BAILEY, et al.,
MOTION TO DISMISS
15 Respondents.
[ECF NO. 10]
16
17
18 This Report and Recommendation is submitted to the Honorable Anthony J.
19 Battaglia, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local
20 Rule 72.1(c) of the United States District Court for the Southern District of California.
21 On June 29, 2025, Petitioner Peni Jr. Siulua, a state prisoner proceeding pro se,
22 commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254 by filing a
23 Petition for Writ of Habeas Corpus (“Petition”). (ECF No. 1.) On September 15, 2025,
24 Judge Battaglia issued an order denying Petitioner’s motion to proceed in forma pauperis
25 and dismissed the case without prejudice. (ECF No. 3.) On November 10, 2025,
26 Petitioner filed his Amended Petition, which is the operative pleading in this case. (ECF
27 No. 5.)
28
1 Now pending before the Court is Respondents’ unopposed Motion to Dismiss the
2 Amended Petition (“Motion to Dismiss”). (ECF No. 10.) For the reasons set forth
3 below, the Court RECOMMENDS that Respondents’ Motion to Dismiss be GRANTED
4 and that the Petition be DISMISSED.
5 I. BACKGROUND AND PROCEDURAL HISTORY
6 A. Petitioner’s Criminal Conviction and Direct Appeal
7 On November 20, 2009, a jury convicted Petitioner of first-degree murder
8 (California Penal Code section 187(a)) and attempted murder (California Penal Code
9 sections 187(a), 664), with findings that Petitioner used a firearm to commit both crimes
10 (California Penal Code sections 12022.53(d), (e)(1)(2)). (See Lodgment 6 at 101–02.)
11 The jury also found Petitioner committed both crimes for the benefit of a criminal street
12 gang (California Penal Code section 186.22(b)(1)). (Id.) On September 20, 2010, the
13 San Diego County Superior Court sentenced Petitioner to seventy-five years to life plus
14 seven years in state prison. (Lodgment 5 at 30–35; Lodgment 6 at 112; Lodgment 7 at
15 25.)
16 Petitioner and his co-defendant, Situe Toluao, appealed their convictions to the
17 California Court of Appeal, arguing that the trial court erred by “(1) admitting certain
18 gang evidence; (2) admitting evidence of Siulua’s statements to an accomplice
19 concerning Toluao’s involvement in the crimes; (3) denying his request to sever the trial;
20 (4) admitting evidence of statements he made to his friend relaying a conversation with
21 another gang member; (5) failing to hold an evidentiary hearing and denying his motion
22 for new trial; (6) denying his petition for release of juror information without setting a
23 hearing and without making express findings; and (7) failing to strike conviction under
24 People v. Superior Court, 13 Cal.4th 497 (1996).” (Lodgment 1 at 1–2.) On October 2,
25 2012, the California Court of Appeal affirmed the decision of the Superior Court finding
26 “no prejudicial errors warranting reversal of the convictions[.]” (Id. at 2.)
27 On November 2, 2012, Petitioner filed a petition for review in the California
28 Supreme Court arguing that (1) the Court of Appeal erred in concluding that admission of
1 the prosecution’s gang expert testimony did not violate Petitioner’s federal due process
2 rights; (2) the Court of Appeal improperly found that Petitioner failed to make a prima
3 facie showing of good cause for a hearing on the release of juror contact information,
4 which conflicts with established precedent; and (3) the California Supreme Court should
5 grant review to decide whether the statutory requirement—that a court state its reasons
6 for denying a petition for juror contact information— is mandatory or directory.
7 (Lodgment 2 at 9–10, 14, 25, 31.) On January 16, 2013, the California Supreme Court
8 summarily denied the petition. (Lodgment 3 at 1.)
9 On December 6 and 12, 2022, Petitioner filed two pro se “Petitions for
10 Resentencing (Pen. Code § 1170.95)”1 in the San Diego County Superior Court.
11 (Lodgment 5 at 52–57.) Petitioner alleged that he had been convicted of murder under a
12 theory of felony murder, the natural and probable consequences doctrine, or other theory
13 under which malice is imputed to a person based solely on that person’s participation in
14 the crime. (Id.) He also alleged he had been convicted of attempted murder under the
15 natural and probable consequences doctrine. (Id.) Petitioner stated that due to changes
16 made to California Penal Code sections 188 and 189 on January 1, 2019, he cannot be
17 convicted of murder or attempted murder. (Id.) The Superior Court found that Petitioner
18 had made a prima facie showing for relief and scheduled an evidentiary hearing.
19 (Lodgment 6 at 117; Lodgment 9 at 5–7.)
20 The San Diego County Superior Court held an evidentiary hearing on December 8,
21 2023, pursuant to California Penal Code section 1172.6, at which Petitioner was
22 represented by counsel. (See Lodgment 8 at 1–44.) The parties did not introduce new
23 evidence at the hearing and relied on the trial transcripts. (Id. at 2–3.) The San Diego
24 County Superior Court found beyond a reasonable doubt that Petitioner was a direct aider
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1 The Court notes that California Penal Code section 1170.95 was renumbered as California Penal Code
27 section 1172.6 “without substantive changes.” See People v. Strong, 13 Cal. 5th 698, 708 n.2 (2022).
Despite the amendment to the code, Petitioner filed the resentencing petition under California Penal
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1 and abettor of the murder and the actual perpetrator of the attempted murder. (Id. at 39–
2 44.) The Superior Court ultimately denied the resentencing petition. (Id. at 42.)
3 On June 25, 2024, appellate counsel filed an opening brief in the California Court
4 of Appeal pursuant to People v. Delgadillo, 14 Cal.5th 216 (2022), stating that he
5 identified no arguable issues on appeal but also noting that he had considered whether
6 substantial evidence supported the trial court’s findings under the amended murder
7 statutes. (Lodgment 10 at 11–13.) On July 3, 2024, Petitioner filed a pro se
8 supplemental brief, alleging ineffective assistance of his appellate counsel for failing to
9 seek resentencing under California Penal Code section 1172.1. (Lodgment 12 at 1.) On
10 August 16, 2024, the California Court of Appeal independently reviewed the record,
11 found no arguable issues, and affirmed. (Lodgment 13 at 2–3.)
12 On July 11, 2024, Petitioner filed a separate pro se request for recall of sentence
13 and resentencing under California Penal Code 1172.1, asking the court to investigate the
14 change in the sentencing laws to reduce his sentence. (See Lodgment 15.) On September
15 5, 2024, the San Diego County Superior Court notified Petitioner that it would not take
16 any action on his request. (Lodgment 16.)
17 B. Petitioner’s State Habeas Petitions
18 On November 8, 2024, Petitioner filed a petition for writ of habeas corpus in the
19 San Diego County Superior Court, requesting appointment of counsel and an
20 investigation of the changes in sentencing laws. (See Lodgment 17.) On December 31,
21 2024, the court denied the petition, stating that Petitioner “fails to adequately set forth a
22 prima facie statement of facts that would entitle him to habeas corpus relief . . . [and] also
23 fails to state a basis on which relief would be warranted.” (Lodgment 18 at 2.) The court
24 also noted that a petition for a writ of habeas corpus is not the proper procedure for
25 seeking a recall of a sentence. (Id.)
26 On January 29, 2025, Petitioner filed a petition for a writ of habeas corpus in the
27 California Supreme Court raising the same claims as in the San Diego County Superior
28 Court. (Lodgment 19.) On May 28, 2025, the California Supreme Court denied the
1 petition, stating that “a petition for writ of habeas corpus must allege sufficient facts with
2 particularity.” (Lodgment 20.)
3 C. Petitioner’s Federal Habeas Petition
4 On June 29, 2025, Petitioner filed his federal Petition in the Ninth Circuit Court of
5 Appeals, and it was thereafter transferred to this Court on August 19, 2025. (See ECF
6 Nos. 1, 3.) On September 15, 2025, District Judge Battaglia denied Petitioner’s motion
7 to proceed in forma pauperis and dismissed the Petition without prejudice. (See ECF No.
8 3.) On November 10, 2025, Petitioner filed an Amended Petition, the operative pleading,
9 asserting the following: (1) he is entitled to resentencing relief under California Penal
10 Code section 1172.1 due to changes in the law and the Court should conduct an
11 investigation;2 and (2) the state trial court improperly denied habeas relief because the
12 state court did not issue an order to show cause based on the District Attorney’s Office’s
13 failure to respond to his petitions. (ECF No. 5 at 6–7.) On February 20, 2026,
14 Respondents filed a Motion to Dismiss, and Petitioner did not respond. (ECF No. 10.)
15 II. LEGAL STANDARD
16 Petitioner’s Petition is governed by the provisions of the Antiterrorism and
17 Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326
18 (1997). Under 28 U.S.C. § 2254(d), as amended by AEDPA:
19 (d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
20
respect to any claim that was adjudicated on the merits in State court
21 proceedings unless the adjudication of the claim—
22
23
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2 In his Amended Petition, Petitioner asserts that “[t]he Trial Court imposed illegal enhancements” and
25 asks the Court to investigate “[a]ll Sentencing Day Penal Code(s) that have [been] Repealed [ ]or
Amended in [his] Case including Retroactive ones.” (ECF No. 5 at 6.) Although Petitioner does not
26 identify specific California sentencing statutes in the text of his Amended Petition, he attaches and cites
a request to recall his sentence under California Penal Code section 1172.1, as well as his state habeas
27 petition. (Id. at 31–32, 34.) Accordingly, the Court construes Petitioner’s claim as a request for an
investigation in recall and resentencing under California Penal Code section 1172.1 based on
28
1 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
2
determined by the Supreme Court of the United States; or
3
(2) resulted in a decision that was based on an unreasonable
4
determination of the facts in light of the evidence presented in the
5 State court proceeding.
6 28 U.S.C. § 2254(d); see also Early v. Packer, 537 U.S. 3, 7–8 (2002).
7 Rule 2(c) of the Rules Governing Habeas Corpus Cases requires the habeas
8 petition to “specify all the grounds for relief available to the petitioner” and “state the
9 facts supporting each ground.” Rule 2(c)(1)–(2), 28 U.S.C. foll. § 2254. “Habeas corpus
10 petitions must meet heightened pleading requirements[.]” McFarland v. Scott, 512 U.S.
11 849, 856 (1994). “Habeas Corpus Rule 2(c) is more demanding” than “Rule 8(a),
12 applicable to ordinary civil proceedings, [which requires] a complaint [to] provide ‘fair
13 notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Mayle v.
14 Felix, 545 U.S. 644, 655 (2005) (quoting Advisory Committee’s Note on Habeas Corpus
15 Rule 2(c), 28 U.S.C. 469 (“[I]t is the relationship of the facts to the claim asserted that is
16 important . . . .”)). “[N]otice pleading is not sufficient, for the petition is expected to state
17 facts that point to a real possibility of constitutional error.” Mayle, 545 U.S. at 655
18 (citation and internal quotation marks omitted). To satisfy Rule 2(c) requirements, a
19 petitioner “must state specific, particularized facts” for each ground specified, and
20 “[t]hese facts must consist of sufficient detail to enable the court to determine, from the
21 face of the petition alone, whether the petition merits further habeas corpus review.”
22 Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990); see also Torres v. Covello,
23 Case No.: 25cv1048-LL-LR, 2025 WL 1617183, at *1 (S.D. Cal. June 6, 2025) (citing
24 Adams, 897 F.2d at 334). “Conclusory allegations which are not supported by a
25 statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26
26 (9th Cir. 1994).
27 A petition from a pro se litigant is held to “less stringent standards” than a petition
28 drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
1 Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, pro se litigants in habeas cases are
2 required to “follow the same rules of procedure that govern other litigants.” Barnett v.
3 Duffey, 621 F. App’x 496, 497 (9th Cir. 2015) (citation omitted).
4 III. DISCUSSION
5 A. Respondents’ Unopposed Arguments
6 Respondents move to dismiss all claims in the Amended Petition. (See ECF No.
7 10-1 at 10–11, 15–28.) First, Respondents assert that both of Petitioner’s claims under
8 state law do not present a federal question. (Id. at 15–19.) Second, Respondents argue
9 that both of Petitioner’s claims are barred by the statute of limitations under 28 U.S.C. §
10 2244(d). (Id. at 19–24.) Third, Respondents contend that Petitioner has failed to state
11 which new sentencing law entitles him to relief, nor has he alleged any facts that entitle
12 him to relief. (Id. at 24–27.) Fourth, Respondents argue that ground two is unexhausted
13 because Petitioner failed to fairly present the claim to the California Supreme Court. (Id.
14 at 27–28.) Petitioner does not oppose the Motion to Dismiss. (See Docket.)3
15 B. Analysis of the Petition under 28 U.S.C. § 2244
16 Respondents move to dismiss the Amended Petition, claiming it is time-
17 barred under the one-year statute of limitations set forth in the AEDPA. (ECF No.
18 10-1 at 19–24.) Respondents further argue that Petitioner’s conviction and
19
20
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3 This district’s Civil Local Rule 7.1.e.2 requires a party opposing a motion to file an opposition or
22 statement of non-opposition within fourteen calendar days of the noticed hearing. Civ. Local R. 7.1.e.2.
Failure to comply with these rules “may constitute a consent to the granting of a motion.” Civ. Local R.
23 7.1.f.3.c. Here, Petitioner did not respond to the Motion to Dismiss, so the Court could grant the Motion
on this basis. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming dismissal when pro se
24
inmate failed to oppose a motion to dismiss, based on a local rule providing that “[t]he failure of the
25 opposing party to file a memorandum of points and authorities in opposition to any motion shall
constitute consent to the granting of the motion”); Butler v. Manning, Case No. 22-cv-690-MMA-DEB,
26 2023 WL 2637386, at *1 (S.D. Cal. Mar. 24, 2023) (granting motion to dismiss because pro se inmate
failed to oppose, explaining that “the Court has the option of granting Defendants’ motion to dismiss
27 based upon Plaintiff’s failure to respond [per Civil Local Rule 7.1.e.2] and chooses to do so here”).
Nevertheless, given Petitioner’s pro se status, the Court will consider the Respondents’ remaining
28
1 sentence became final in 2013, it has not been retriggered, and he is not entitled to
2 tolling. (Id. at 20.) The Court agrees.
3 The Petition was filed after the effective date of the AEDPA, and it is subject
4 to the AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d).
5 See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). The AEDPA imposes
6 a one-year period of limitation on applications for a writ of habeas corpus by persons in
7 custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The limitation
8 period begins to run from the latest of the following events:
9 (A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
10
11 (B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
12
removed, if the applicant was prevented from filing by such State action;
13
(C) the date on which the constitutional right asserted was initially
14
recognized by the Supreme Court, if the right has been newly recognized by
15 the Supreme Court and made retroactively applicable to cases on collateral
review; or
16
17 (D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
18
19 Id.
20 The AEDPA’s one-year statute of limitations period can be statutorily and
21 equitably tolled. Statutory tolling suspends the limitations period for the “time during
22 which a properly filed application for State post-conviction or other collateral review” is
23 pending. See 28 U.S.C. § 2244(d)(2). Equitable tolling of the statute of limitations is
24 appropriate when a petitioner can show “‘(1) that he has been pursuing his rights
25 diligently, and (2) that some extraordinary circumstance stood in his way and prevented
26 timely filing.’” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
27 DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Fue v. Biter, 842 F.3d 650, 653 (9th
28 Cir. 2016) (same).
1 A petitioner bears the burden of demonstrating that the limitations period is
2 sufficiently tolled under statutory or equitable principles. See Valdez v. Montgomery,
3 918 F.3d 687, 691 (9th Cir. 2019). It is appropriate to dismiss a federal petition for writ
4 of habeas corpus with prejudice when the petition is not filed within the AEDPA’s one-
5 year statute of limitations. Jiminez v. Rice, 276 F.3d 478, 482–83 (9th Cir. 2001).
6 Here, Petitioner’s state court judgment became final on April 16, 2013,
7 ninety days after the California Supreme Court denied his petition for review on
8 January 16, 2013. (See Lodgment 4); see also Bowen v. Roe, 188 F.3d 1157,
9 1159 (9th Cir. 1999) (“[A] conviction is not final until the ninety-day certiorari
10 period has expired.”). Thus, the AEDPA’s statute of limitations began to run the
11 following day, on April 17, 2013. See Patterson, 251 F.3d at 1246 (holding that
12 Federal Rule of Civil Procedure 6(a), which instructs that “[i]n computing any
13 period of time prescribed or allowed by these rules, by the local rules of any
14 district court, by order of court, or by any applicable statute, the day of the act,
15 event, or default from which the designated period of time begins to run shall not
16 be included,” applied to the AEDPA’s limitation period). Therefore, the statute of
17 limitations expired one year later on April 17, 2014. See 28 U.S.C. §
18 2244(d)(1)(A). Petitioner did not file his federal Petition until June 29, 2025,
19 more than eleven years after the statute of limitations expired. (See ECF No. 1.)
20 Therefore, absent a later trigger date under 28 U.S.C.§ 2244(d)(1)(B)–(D) or any
21 applicable statutory or equitable tolling, the federal Petition is untimely.
22 Section 2244(d)(1)(B) does not provide an alternate start date to the
23 limitations period in this case. Petitioner does not allege, and the record does not
24 show, that any illegal conduct by the state or those acting for the state “made it
25 impossible for him to file a timely § 2254 petition in federal court.” See Ramirez
26 v. Yates, 571 F.3d 993, 1000–01 (9th Cir. 2009).
27 Section 2244(d)(1)(C) is likewise inapplicable. Petitioner does not assert a
28 claim based on a constitutional right “newly recognized by the Supreme Court and
1 made retroactively applicable to cases on collateral review.” 28 U.S.C. §
2 2244(d)(1)(C). Both of Petitioner’s claims are based on a recall of Petitioner’s
3 sentence under California Penal Code section 1172.1, rather than a constitutional
4 right newly recognized by the United States Supreme Court. Thus, a change to a
5 state sentencing law does not later trigger the AEDPA’s one-year statute of
6 limitations. See Stroud v. Madden, Case No. 19-cv-01047-GPC (KSC), 2020 WL
7 5055858, at *5 (S.D. Cal. Aug. 27, 2020) (holding that an amendment to a
8 California sentencing law did not provide a later trigger date under §
9 2244(d)(1)(C) “because [federal statute] . . . does not apply to new rights
10 recognized by a change in state law”).
11 Section 2244(d)(1)(D) also does not later trigger the statute of limitations
12 past April 17, 2014. Under that provision, the AEDPA’s statute of limitations
13 runs from the “date on which the factual predicate of the claim or claims presented
14 could have been discovered through exercise of due diligence.” 28 U.S.C. §
15 2244(d)(1)(D). Both Petitioner’s claims arise from the recall of his sentence
16 under California Penal Code section 1172.1 due to unspecified changes in the law.
17 Even if Petitioner clearly identified the changes, a state-court decision or a change
18 in state law does not constitute a “factual predicate” that could not have been
19 discovered “through the exercise of due diligence” under § 2244(d)(1)(D). See
20 Shannon v. Newland, 410 F.3d 1083, 1088–89 (9th Cir. 2005) (“If a change in (or
21 clarification of) state law . . . could qualify as a ‘factual predicate,’ then the term
22 ‘factual’ would be meaningless”); see also Stroud, 2020 WL 5055858, at *5.
23 Therefore, the record does not provide, and Petitioner does not allege, a factual
24 predicate that satisfies 28 U.S.C. § 2244 (d)(1)(D). Accordingly, unless Petitioner
25 is entitled to statutory or equitable tolling, his federal Petition is untimely and
26 therefore barred by the applicable statute of limitations.
27 Respondents also assert that Petitioner’s resentencing effort did not toll the
28 already expired limitations period. (ECF No. 10-1 at 22.) Under the AEDPA, the
1 one-year statute of limitations period is tolled while “a properly filed application for State
2 post-conviction or other collateral review with respect to the pertinent judgment or claim
3 is pending” in state court. See 28 U.S.C. § 2244(d)(2). “The time that an application for
4 state postconviction review is ‘pending’ includes the period between (1) a lower court’s
5 adverse determination, and (2) the prisoner’s filing of a notice of appeal, provided
6 that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546
7 U.S. 189, 191 (2006). In California, where habeas decisions are not appealed but may be
8 filed originally in each court, the intervals between the disposition of one state petition
9 and the filing of a further petition may be tolled. See Carey v. Saffold, 536 U.S. 214, 223
10 (2002). However, a state habeas petition filed after the expiration of the AEDPA’s one-
11 year statute of limitations has no tolling effect. See Ferguson v. Palmateer, 321 F.3d 820,
12 823 (9th Cir. 2003) (holding that “section 2244(d) does not permit the reinitiation of the
13 limitations period that has ended before the state petition was filed”); Jiminez, 276 F.3d
14 at 482 (finding that the filing a state habeas petition after the federal statute of limitations
15 had expired “resulted in an absolute time bar”). Additionally, the AEDPA’s statute of
16 limitations is “not tolled after state post-conviction proceedings are final and before
17 federal habeas proceedings are initiated.” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir.
18 2006). A motion to reduce sentence under state law, however, may be a form of
19 “collateral review” that triggers the AEDPA’s tolling provision. Wall v. Kholi, 562 U.S.
20 545, 556 (2011).
21 Here, following the conclusion of his direct appeal, Petitioner’s deadline to file a
22 timely federal habeas petition was April 17, 2014. Petitioner did not file anything further
23 in this case until December 6 and 12, 2022, when he submitted two pro se petitions for
24 resentencing under California Penal Code section 1170.95. (See Lodgment 5 at 52–57.)
25 On August 16, 2024, the California Court of Appeal affirmed the Superior Court’s denial
26 of Petitioner’s request for recall of sentence under California Penal Code section 1170.95.
27 (See Lodgment 13.) Petitioner then filed another pro se motion to recall his resentencing
28 in the Superior Court under California Penal Code section 1172.1, which the Superior
1 Court denied on September 5, 2024. (See Lodgment 16.) Petitioner did not file his pro
2 se state habeas petition until November 8, 2024—more than ten years after the AEDPA’s
3 limitations period expired—seeking an investigation into his sentencing. (See Lodgment
4 17.) Therefore, under Wall, Petitioner’s first collateral review filing for tolling purposes
5 occurred on December 6, 2022. See Wall, 562 U.S. at 556 (holding that a motion to
6 reduce a sentence under state law is an application for collateral review). However, that
7 filing came 3,152 days after the federal statute of limitations expired, so it cannot revive
8 the expired deadline. See Ferguson, 321 F.3d at 823; Jiminez, 276 F.3d at 482.
9 Petitioner’s federal Petition is therefore time-barred, unless Petitioner can establish that
10 he is entitled to equitable tolling.
11 Respondents further contend that Petitioner has not shown extraordinary
12 circumstances or diligent pursuit of his rights sufficient to warrant equitable tolling.
13 (ECF No. 10-1 at 20.) The AEDPA’s one-year statute of limitations may be equitably
14 tolled if a habeas petitioner can establish the following two elements: (1) “[petitioner] has
15 been pursuing his rights diligently,” and (2) “some extraordinary circumstances”
16 prevented timely filing. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418).
17 Equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger
18 equitable tolling [under the AEDPA] is very high, lest the exceptions swallow the rule.”
19 Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (quoting Miranda v. Castro, 292 F.3d
20 1063, 1066 (9th Cir. 2001)). Here, Petitioner does not oppose Respondents’ Motion to
21 Dismiss and has offered no facts to support equitable tolling under the AEDPA’s high
22 threshold. Petitioner’s reliance on changes in state sentencing law also cannot satisfy the
23 “extraordinary circumstance” requirement. The Ninth Circuit has made clear that an
24 intervening state decision or change in state law does not warrant equitable tolling, as
25 doing so “would open the door for any state prisoner to file a habeas petition anytime a
26 state court issues a clarification of state law[,]” a result inconsistent with the AEDPA’s
27 goal of finality. See Shannon, 410 F.3d at 1090. Petitioner has not shown, and the Court
28 has no basis to find, equitable tolling of the one-year statute of limitations in 28 U.S.C. §
1 2244. Therefore, the Petition is untimely and barred by the applicable statute of
2 limitations.
3 For the reasons stated above, the Court RECOMMENDS that the District
4 Judge dismiss the Amended Petition as untimely.
5 C. Ground One4
6 In Ground One, as best as the Court can discern, Petitioner alleges that the state
7 trial court imposed illegal sentencing enhancements when it denied his request for recall
8 of sentencing and resentencing. (ECF No. 5 at 6, 31–32.) In a brief statement of
9 supporting facts, Petitioner cites to his state habeas filing and “call[s] upon this Court of
10 law to conduct a Full Judicial Investigation regarding All sentencing day Penal Code(s)
11 that have Repealed and or Amended in My Case including Retroactive ones.” (Id.)
12 Petitioner does not identify any specific California statute in the text of Ground One, but
13 he attaches his state habeas petitions and his request for recall of sentence and
14 resentencing under California Penal Code section 1172.1. (Id. at 6, 31–32, 40–45, 50–
15 51.)
16 Respondent moves to dismiss Ground One, arguing that it is not cognizable on
17 federal habeas review because it turns entirely on the application of state sentencing law.
18 (ECF No. 10-1 at 15–17.) Respondent further argues that Petitioner “cannot transform
19 his state law claims into federal ones simply by citing unrelated federal rules, statutes,
20 and cases.” (Id. at 18.) The Court agrees.
21 A federal habeas court is limited to deciding whether a conviction violates the
22 Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a) (providing
23 that federal courts “shall entertain an application for a writ of habeas corpus on behalf of
24 a person in custody pursuant to the judgment of a State court only on the ground that he is
25 in custody in violation of the Constitution or laws or treaties of the United States”);
26
27
4 Although the Amended Petition is untimely under the AEDPA’s one-year statute of limitations, the
28
1 Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law
2 that renders a State’s criminal judgment susceptible to collateral attack in the federal
3 courts.”); Pinson v. Carvajal, 69 F.4th 1059, 1065 (9th Cir. 2023) (“[T]he Ninth Circuit
4 has long held that the ‘writ of habeas corpus is limited to attacks upon the legality or
5 duration of confinement’”). Federal habeas corpus relief is not available to correct
6 alleged errors of the state court’s application or interpretation of state law. See Swarthout
7 v. Cooke, 562 U.S. 216, 219 (2011) (internal quotation marks and citation omitted)
8 (“[F]ederal habeas corpus relief does not lie for errors of state law”); Estelle v. McGuire,
9 502 U.S. 62, 67–68 (1991) (same; noting that “[i]t is not the province of a federal habeas
10 court to reexamine state-court determinations on state-law questions”); Burrell v. Lewis,
11 172 F.3d 875 (9th Cir. 1999) (finding that petitioner’s claim challenging the application
12 of California state law was not cognizable in a federal habeas petition).
13 Ground One seeks post-conviction resentencing relief under California Penal Code
14 section 1172.1 and thus alleges a violation of state, not federal, law. Section 1172.1
15 authorizes a state trial judge sua sponte, or on motion of certain state officers, to recall
16 and resentence a criminal defendant. It also states, however, that a criminal defendant
17 has no right to petition for such relief, and that if such a petition is filed, the state court
18 need not respond. Cal. Penal Code § 1172.1(c). Despite the language of section
19 1172.1(c), Petitioner filed a request for resentencing, which the trial court denied. (See
20 Lodgments 15–16.) Petitioner then filed a state habeas petition asking the state courts to
21 investigate whether amendments to California’s sentencing laws entitled him to a reduced
22 sentence, and the California courts again denied relief. (See Lodgments 17–20.) Because
23 habeas review in federal court is limited to deciding whether a conviction violated the
24 Constitution, laws, or treaties of the United States, Petitioner’s claim challenging the state
25 court’s application of California sentencing law is not cognizable on federal habeas
26 review. See Wilson, 562 U.S. at 5; see also Waddington v. Sarausad, 555 U.S. 179, 192
27 n.5 (2009) (quoting Estelle, 502 U.S. at 67–68) (“[W]e have repeatedly held that ‘it is not
28 the province of a federal habeas court to reexamine state-court determinations on state-
1 law questions.’”); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (providing that a state
2 court’s interpretation of state law binds federal court sitting in habeas corpus).
3 Further, in Ground One, Petitioner also cites Federal Rule of Civil Procedure 605
4 and 28 U.S.C. § 1361,6 seeking relief from judgment under those statutes, but offers no
5 supporting facts. (ECF No. 5 at 6.) However, Petitioner cannot transform his state-law
6 claim into a federal claim by citing unrelated federal laws. See Langford v. Day, 110
7 F.3d 1380, 1389 (9th Cir. 1996) (adding the phrase “due process” to state law claims does
8 not transform them into federal claims; rather, they remain state law claims “dressed up”
9 as federal due process claims); see also Holloway v. Price, No. CV 14–5987 RGK (SS),
10 2015 WL 1607710, at *6–8 (C.D. Cal. Apr. 7, 2015) (finding federal due process and
11 equal protection claims challenging the denial of resentencing under California Penal
12 Code § 1170.126 were not cognizable); Aubrey v. Virga, No. EDCV 12–822–JAK
13 (AGR), 2015 WL 1932071, at *9–10 (C.D. Cal. Apr. 27, 2015) (same); Morgan v.
14 Spearman, No. CV 15–3704–DOC (GJS), 2015 WL 2452781, at *5 (C.D. Cal. May 21,
15 2015) (“Draping this question of state [sentencing] law in the verbiage of the Sixth
16 Amendment or equal protection or the Ex Post Facto Clause does not render the claim
17 cognizable”). Therefore, the Court finds that Petitioner’s claim in Ground One for
18 sentencing and resentencing pursuant to California sentencing law is not cognizable on
19 federal habeas review. See, e.g., Gooden v. Johnson, No. 2:24-CV-02648-DDP-PD,
20 2024 WL 5683680, at *2 (C.D. Cal. Nov. 21, 2024) (collecting cases finding that a state
21 court's denial of request for resentencing under section 1172.1 does not raise a cognizable
22 issue on federal habeas review); see also Fritz v. California, No. 2:24-cv-2563-AC P,
23 2024 WL 5010017, at *1 (E.D. Cal. Nov. 13, 2024) (finding claim premised on section
24
25
26 5 Federal Rule of Civil Procedure 60 authorizes a federal court to correct errors and, in limited
circumstances, grant relief from a final judgment or order. See Fed. R. Civ. P. 60(a)–(e).
27 6 28 U.S.C. § 1361 states “[t]he district courts shall have original jurisdiction of any action in the nature
of mandamus to compel an officer or employee of the United States or any agency thereof to perform a
28
1 1172.1 not cognizable in federal habeas); Cummings v. CDCR, No. 22-cv-23 (PA) AFM,
2 2022 WL 1063754, at *3 (C.D. Cal. Apr. 5, 2022) (collecting cases explaining “claims
3 alleging entitlement to resentencing under various amendments to the California Penal
4 Code are not cognizable”).
5 Even if federal habeas jurisdiction existed, Petitioner failed to sufficiently plead his
6 claim in Ground One. Rule 2(c) of the Rules Governing Habeas Corpus Cases requires
7 the habeas petition to “specify all the grounds for relief available to the petitioner” and
8 “state the facts supporting each ground.” Rule 2(c)(1)–(2), 28 U.S.C. foll. § 2254. Here,
9 Petitioner simply asks the Court to investigate all sentencing statutes that have been
10 repealed or amended, without identifying any specific statute or explaining how those
11 changes violated his rights. (ECF No. 5 at 6.) Allegations in a petition that are vague,
12 conclusory, and unsupported by a statement of specific facts are insufficient to warrant
13 habeas relief. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (requiring habeas
14 petitioner to support conclusions with evidence); Degadillo v. Adams, No. 05cv0060,
15 2008 WL 331396, at *6 (S.D. Cal. Feb. 5, 2008) (finding that petitioner’s claim that the
16 state court violated his constitutional rights did not comply with Rule 2(c) of the Rules
17 Governing Habeas Corpus Cases, where the petitioner did not explain or elaborate on the
18 claim, and the claim was unsupported by argument or authority). Petitioner also attaches
19 his state habeas petitions and states that the supporting facts for Ground One are the
20 “same as state habeas filing.” (ECF No. 5 at 6.) In those state petitions, he likewise
21 asked the court to investigate the sentencing laws. (Lodgment 17 at 3–4.) The state trial
22 court denied relief, finding that Petitioner failed to state a claim and that a state habeas
23 petition is not the proper vehicle for resentencing under California Penal Code section
24 1172.1. (See Lodgment 18.) The California Supreme Court then denied his renewed
25 petition for failing to allege facts with sufficient particularity. (Lodgment 20 (citing In re
26 Swain, 34 Cal. 2d 300, 304 (1949)).) Petitioner encounters the same problem in this
27 Court. His generalized request for an investigation into sentencing laws does not satisfy
28 Rule 2(c) of the Rules Governing Section 2254 Cases, which requires specific grounds
1 and supporting facts. See Rule 2(c)(1)–(2), 28 U.S.C. foll. § 2254; see also Mayle, 545
2 U.S. at 655 (“[T]he petition is expected to state facts that point to a real possibility of
3 constitutional error.”); James, 24 F.3d at 26 (“Conclusory allegations which are not
4 supported by a statement of specific facts do not warrant habeas relief.”). Given
5 Petitioner’s failure to substantiate his claims with facts or evidence, his Ground One
6 claims are too vague and do not comply with Rule 2(c) Governing Habeas Corpus Cases.
7 See id.
8 For all the foregoing reasons, the Court RECOMMENDS that the District Judge
9 issue an order dismissing Petitioner’s claim in Ground One.
10 D. Ground Two
11 In Ground Two, although not clearly stated, Petitioner appears to allege that the
12 San Diego District Attorney’s Office failed to respond to or rebut the factual allegations
13 in his state habeas petitions seeking an investigation into California sentencing laws.
14 (ECF No. 5 at 7 (citing Cal. Penal Code § 1473).)7 On that basis, Petitioner requests this
15 Court issue an Order to Show Cause. (Id.)
16 Respondents argue that this claim is unexhausted because Petitioner did not “fairly
17 present” it to the California Supreme Court. (ECF No. 10-1 at 27–30.) Respondent
18 further contends that, even if the Court were to reach the merits, the claim is not
19 cognizable on federal habeas review and is inadequately pleaded, as Petitioner fails to
20 allege sufficient supporting facts. (Id. at 17–19, 24–27.) Respondent therefore asserts
21 that the Amended Petition should be dismissed. (Id.)
22 A federal court may not address a petition for writ of habeas corpus unless
23 petitioner has exhausted state remedies with respect to each of the issue(s) presented. 28
24 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations and
25
26
27 7 California Penal Code section 1473 authorizes a “person unlawfully imprisoned or restrained of their
liberty, under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of the
28
1 quotation marks omitted) (“Before seeking a federal writ of habeas corpus, a state
2 prisoner must exhaust available state remedies, thereby giving the State the opportunity
3 to pass upon and correct alleged violations of its prisoners’ federal rights.”); Fields v.
4 Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) (“We may review the merits of
5 Petitioner’s habeas petition only if he exhausted state court remedies.”). To satisfy the
6 exhaustion requirement, petitioner must “fairly present” his federal claim to the highest
7 state court with jurisdiction to consider the claim, or demonstrate that there are no
8 available state remedies. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing
9 Anderson v. Harless, 459 U.S. 4, 6 (1982); Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th
10 Cir. 1983)). A state prisoner seeking relief with respect to a California conviction is
11 required to “fairly present” his federal claims to the California Supreme Court either on
12 direct appeal or through state collateral review proceedings. See 28 U.S.C. § 2254(b),
13 (c); Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004). If available state remedies have
14 not been exhausted as to all claims, the district court must dismiss the petition. See Rose
15 v. Lundy, 455 U.S. 509, 510 (1982); Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir.
16 2006).
17 The record shows that Petitioner presented a single claim to the California courts
18 requesting an investigation into California sentencing laws, and the courts denied relief.
19 (See Lodgments 17–20.) In support of that claim, Petitioner cited California Penal Code
20 section 1473 in both the Superior Court and the California Supreme Court. (Lodgment
21 17 at 3; Lodgment 19 at 3.) As discussed in Section III.C, Petitioner raised the same
22 investigation claim in Ground One of his federal Amended Petition. (ECF No. 5 at 6.)
23 However, in Ground Two of the federal Amended Petition, Petitioner cites California
24 Penal Code § 1473 and, for the first time, requests that this Court issue an Order to Show
25 Cause based on the San Diego District Attorney’s alleged failure to respond to his state
26 habeas petitions. (Id. at 7.) Because Petitioner did not provide the state’s highest court
27 an opportunity to consider this specific claim and rule on the merits, the Court concludes
28 that it is unexhausted. See Johnson, 88 F.3d at 829. The Amended Petition is therefore
1 “mixed,” because it contains both exhausted and unexhausted claims. Ordinarily, a
2 federal court may not consider a “mixed petition” and must dismiss it in whole or in part.
3 See Rose, 455 U.S. at 510. Nonetheless, under 28 U.S.C. § 2254(b)(2), a federal habeas
4 court may deny an unexhausted claim on its merits when the claim does not state a
5 colorable claim for relief. Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). As
6 explained below, Ground Two is plainly meritless. The Court therefore declines to
7 dismiss the petition on exhaustion grounds and instead denies Ground Two on the merits.
8 See id.; cf. Rhines v. Webber, 544 U.S. 269, 125 (2005) (intimating that Section
9 2254(b)(2) permits the consideration, and the denial, of “plainly meritless” claims).
10 As discussed above, federal habeas relief is available only for violations of the
11 Constitution, laws, and treaties of the United States. Estelle, 502 U.S. at 68. Ground
12 Two arises from Petitioner’s reliance on California Penal Code section 1473 and his
13 request that this Court issue an Order to Show Cause based on the District Attorney’s
14 alleged failure to respond to his state habeas petitions. (ECF No. 5 at 7.) Section 1473
15 allows a prisoner to pursue a state writ of habeas corpus to challenge the legality of
16 custody, but it does not create federal jurisdiction or a federal right to relief. Cal. Penal
17 Code § 1473(a). Petitioner identifies no federal constitutional violation arising from the
18 alleged failure to respond, nor does he establish any ground for this Court to intervene in
19 state habeas procedures. Petitioner’s citations to unrelated federal statutes and cases
20 likewise do not convert this state-law issue into a federal claim. See Langford, 110 F.3d
21 at 1389. Accordingly, Ground Two is not a cognizable claim on federal habeas review.
22 See Bolin v. Newcomb, No. 2:24-CV-01534-EFB (HC), 2025 WL 744804, at *1 (E.D.
23 Cal. Mar. 7, 2025) (finding that petitioner’s request to show cause under Cal. Penal Code
24 § 1473 does not confer jurisdiction to the federal court); Quintero v. Pfeiffer, No. CV 21-
25 3782-MWF(E), 2021 WL 6335198, at *7 (C.D. Cal. Dec. 3, 2021) (finding that
26 Petitioner’s claim that he was entitled to resentencing under Cal. Penal Code § 1473 is
27 not cognizable on federal habeas review); Rushing v. Neuschmid, 2020 WL 2404666, at
28
1 *27–28 (N.D. Cal. May 12, 2020) (state court’s alleged misapplication of Cal. Penal
2 Code § 1473(b)(3) not cognizable on federal habeas corpus).
3 Ground Two also fails the basic pleading standards for federal habeas petitions.
4 Rule 2(c) of the Rules Governing Section 2254 Cases requires a petitioner to specify each
5 ground for relief and to state the facts supporting each ground. Rule 2(c)(1)–(2), 28
6 U.S.C. foll. § 2254. Petitioner offers only conclusory assertions that the District Attorney
7 did not respond to his state petitions, without explaining how this alleged non‑response
8 violated any federal right or affected the legality of his custody. Such bare allegations,
9 unsupported by particularized facts, do not satisfy Rule 2(c) or provide a cognizable basis
10 for relief. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by
11 a statement of specific facts do not warrant habeas relief.”); McFarland, 512 U.S. at 856
12 (“Habeas corpus petitions must meet heightened pleading requirements[.]”)
13 Accordingly, although Ground Two is unexhausted, dismissal to permit exhaustion
14 in state court would serve no purpose because the claim is plainly meritless and not
15 cognizable on federal habeas review. The Court therefore RECOMMENDS that the
16 District Judge issue an order dismissing Petitioner’s claim in Ground Two.
17 E. Conclusion
18 The Court has liberally construed Petitioner’s claims and concludes that the
19 Amended Petition is untimely under the AEDPA and, in any event, fails on the merits.
20 The Court finds that the claims rest on state sentencing and state habeas procedures, are
21 not cognizable on federal habeas review, and do not comply with the heightened pleading
22 requirements of Rule 2(c) of the Rules Governing Section 2254 Cases. The Court
23 therefore RECOMMENDS that the District Judge grant Respondents’ Motion to
24 Dismiss the Amended Petition.
25 IV. CONCLUSION AND RECOMMENDATION
26 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District
27 Judge issue an order: (1) approving and adopting this Report and Recommendation; and
28 (2) GRANTING Respondents’ Motion to Dismiss.
l IT IS ORDERED that no later than August 14, 2026, any party to this action may
2 || file written objections with the Court and serve a copy on all parties. The document
3 ||should be captioned “Objections to Report and Recommendation.”
4 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
5 Court and served on all parties no later than August 21, 2026. The parties are
6 || advised that failure to file objections within the specified time may waive the right to
7 || raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d
8 455 (9th Cir. 1998).
9 IT IS SO ORDERED.
10 Dated: July 14, 2026
11
12 / L
13 Honorable Lupe Rodriguez, Jr.
14 United States Magistrate Judge
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