Gabriel Ralphie Menchaca v. Pfieffer

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL

Case No. 5:23-cv-02078-FWS (DTB) Date: February 5, 2024

Title: Gabriel Ralphie Menchaca v. Pfieffer

DOCKET ENTRY

PRESENT:

HON. DAVID T. BRISTOW, MAGISTRATE JUDGE

S. Lorenzo n/a

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT(S):

None present None present

PROCEEDINGS: (INCHAMBERS) ORDER TO SHOW CAUSE WHY FIRST

AMENDED PETITION SHOULD NOT BE DISMISSED DUE TO FAILURE

TO EXHUAST AND UNTIMELINESS

On October 5, 2023, petitioner Gabriel Ralphie Menchaca filed a Petition for

Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2241 which

the Court reclassified as a § 2254 petition since petitioner appeared to be in state

custody pursuant to a state court conviction. (Dkt.#1.) Petitioner failed to pay any

portion of his entire filing fee or file a Request to Proceed in Forma Pauperis.

Petitioner was informed that if he was unable to pay the entire filing fee, he must sign

and complete a Request to Proceed Without Prepayment of Filing Fees with

Declaration in Support (“IFP Request’) and that if he failed to do so within thirty

days, this matter may be dismissed. (Dkt. #2.)

Rather than paying the filing fee or completing an IFP Request, on October 30,

2023, petitioner filed a “Motion for Writ of Mandamus; and Objections to Court’s

Local Practice of Charging Fee(s) Obligation for Petition Under 28 U.S.C. §

2241(c)(3) for Writ of Habeas Corpus” (Dkt. # 5) which the previously assigned

Magistrate Judge denied on November 17, 2023. (Dkt. # 6.) The previously

assigned Magistrate Judge ordered petitioner to either file an IFP Request (form

(CV-60P)) or pay the requisite filing fee by December 29, 2023, and that his failure

to timely and adequately comply with the Court’s Orders may result in dismissal of

this action. (Id.) On December 8, 2023, petitioner filed a Motion to Amend

MINUTES FORM 11 Initials of Deputy Clerk _SL

CIVIL-GEN

Petition (Dkt. # 8) and a First Amended Petition (“FAP”) (Dkt. # 9). On December

18, 2023, the Court denied petitioner’s Motion to Amend Petition as moot, as he had

filed the FAP. (Dkt. # 10.) The Court also reminded petitioner that he must comply

with the Court’s previous Orders.

Petitioner has failed to file an IFP Request or pay the requisite filing fee by

December 29, 2023, and thus, as petitioner was previously notified, the FAP is

subject to dismissal.

In addition, the Court has reviewed the FAP and it appears that the FAP is

subject to dismissal on the additional grounds that petitioner has not exhausted his

state remedies with respect to the grounds raised in his FAP, and also that the FAP

may be time-barred. The Court will not make a final determination regarding

whether the FAP should be dismissed, however, without giving petitioner an

opportunity to address these issues.

Accordingly, the Court hereby issues this Order to Show Cause why the FAP

should not be dismissed, and specifically orders petitioner to respond to the Order to

Show Cause in writing by no later than March 7, 2024. The court further directs

petitioner to review the information that follows, which provides additional

explanation as to why the FAP appears to be subject to dismissal and may assist

petitioner in determining how to respond.

Payment of Filing Fee/Request to Proceed in Forma Pauperis

Petitioner has previously argued that he is excused from paying any filing fee

for the current action on the basis that a habeas petition is exempt from such fees.

(See, generally, Motion for Writ of Mandamus [Dkt. # 5].) However, petitioner is

mistaken. As the Court previously informed petitioner in its Order dated November

17, 2023, federal law requires either the payment of the filing fee or an IFP Request

accompanied by the affidavit required by 28 U.S.C. § 1915 and a certificate from the

responsible institutional official confirming petitioner’s financial resources. (See

Rule 3(a) of the Rules Governing Section 2254 Cases in the United States District

Courts.)

Petitioner has failed to comply with the Court’s previous Order regarding

payment of the filing fee, notwithstanding ample authority confirming the

requirement regarding the filing fee and empowering courts in this Circuit to dismiss

habeas petitions for failure to comply with a court order concerning submission of the

fee or an IFP Request. (See, e.g., Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir.

2000); Culler v. Board of Prison Terms, 405 F.App’x 263, 264 (9th Cir. 2010.)1

1 To the extent petitioner contends that his FAP is governed by 28 U.S.C. § 2241, he is incorrect. When a state

prisoner is in custody pursuant to a state court judgment, 28 U.S.C. § 2254 is the exclusive vehicle for a habeas

petitioner. (White v. Lambert, 370 F.3d 1002, 1009.10 (9th Cir. 2004), overruled on other grounds by Hayward v.

Marshall, 603 F.3d 549 (9th Cir. 2010) (en banc). Notwithstanding petitioner’s contention to the contrary, he is

The Exhaustion Requirement

A state prisoner must exhaust his or her state court remedies before a federal

court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A);

O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or

her federal claims in the state courts in order to give the State the opportunity to pass

upon and correct alleged violations of the prisoner’s federal rights. Duncan v.

Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A

habeas petitioner must give the state courts “one full opportunity” to decide a federal

claim by carrying out “one complete round” of the state’s appellate process in order

to properly exhaust a claim. O’Sullivan, 526 U.S. at 845.

For a petitioner in California state custody, this generally means that the

petitioner must have fairly presented his or her claims in a petition to the California

Supreme Court. See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c));

Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to

California). A claim has been fairly presented if the petitioner has both “adequately

described the factual basis for [the] claim” and “identified the federal legal basis for

[the] claim.” Gatlin, 189 F.3d at 888.

Here, petitioner has raised five purported grounds for relief in his FAP: (1) The

state court lacked jurisdiction; (2) petitioner was denied the right to confront

witnesses; (3) the state court refused to prove its jurisdiction; (4) double jeopardy;

and (5) intentional misrepresentation. The FAP indicates that none of the grounds

contained therein have been presented to the California Supreme Court and, thus,

none of these grounds have yet been exhausted. In the FAP, petitioner concedes he

has not raised any of the five grounds raised therein on post-conviction review or

other collateral review to the California Courts of Appeal, including the Supreme

Court, but appears to argue that such would be futile, stating “I was denied

constitutional rights that the state refused me and to challenge such in a state court

would result in no useful remedy, it’d be a morass.” (FAP at 3.) Petitioner also

asserts that “[t]he state Supreme Court will NOT (sic) entertain federal constitutional

clams.” (FAP at 7.)

Notwithstanding petitioner’s belief to the contrary, as set forth above, he is

required to exhaust his available state court remedies before seeking federal habeas

relief. (28 U.S.C. § 2254(b)(1)(A); O’Sullivan, 526 U.S. at 842.) As noted above,

in either case, this generally means presenting the claims to the California Supreme

challenging his state court judgment of conviction, as such judgment is the basis for his present incarceration. In the

FAP, petitioner challenges his custody on various grounds and asserts, inter alia, that his current custodial status is the

result of his guilty plea in 2020 in Case No. RIF 2003059 in Riverside County Superior Court. (FAP at 2.)

Accordingly, petitioner appears to be in state custody as the result of a state court judgment of conviction and, thus, the

Court construes the Petition and FAP pursuant to 28 U.S.C. § 2254.

Court for consideration before seeking federal habeas relief. Gatlin, 189 F.3d at 888.

As the claims contained in the FAP appear to be completely unexhausted, the

FAP is subject to dismissal.

Statute of Limitations

In addition to the lack of exhaustion of state remedies, it also appears that the

FAP is subject to dismissal on the basis that it is untimely.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) mandates that

a “1-year period of limitation shall apply to an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. §

2244(d)(1); see also Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 166

L.Ed.2d 924 (2007); Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003). After

the one-year limitation period expires, the prisoner’s “ability to challenge the

lawfulness of [his] incarceration is permanently foreclosed.” Lott v. Mueller, 304

F.3d 918, 922 (9th Cir. 2002).

To assess whether a petition is timely filed under the AEDPA, it is essential to

determine when the AEDPA’s limitation period starts and ends. By statute, the

AEDPA’s limitation period begins to run from the latest of four possible events:

(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;

(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 removed,

if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized

by the Supreme Court, if the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

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

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Ordinarily, the starting date of the limitation period is the

date on which the judgment becomes final after the conclusion of direct review or the

expiration of the period for seeking direct review. See Wixom v. Washington, 264

F.3d 894, 897 (9th Cir. 2001).

Here, petitioner challenges his current state incarceration, which arises out of a

2020 judgment of conviction based on his guilty plea (FAP at 2) in Riverside

Superior Court Case No. RIF2003059 on October 20, 2020.2 According to the

Riverside County Superior Court’s website, petitioner was sentenced on November 3,

2020.

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

For purposes of calculating the limitations period under 28 U.S.C.

§2244(d)(1)(A), the date upon which “judgment became final” is the date of

sentencing. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (holding that

petitioner’s sentence became final at conclusion of state court resentencing process).

As petitioner asserts he did not file an appeal of his conviction, under California law,

his judgment of conviction became final 60 days after the date judgment was entered,

which is the date of his sentencing. See Cal. Rules of Court 8.308(a) (stating that a

notice of appeal of a felony conviction must be filed within 60 days following the

entry of judgment.) The AEDPA may also allow for statutory tolling or equitable

tolling. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). But “a court must

first determine whether a petition was untimely under the statute itself before it

considers whether equitable [or statutory] tolling should be applied.” Id. In

addition, the Ninth Circuit has held that actual, factual innocence provides an

exception to the AEDPA statute of limitations. Lee v. Lampert, 653 F.3d 929,

934-35 (9th Cir. 2011) (en banc).

As petitioner indicates he did not appeal or otherwise file a petition for review

in the California Supreme Court, it appears from the face of the FAP as well as the

Petition that judgment became final on January 2, 2021, 60 days after the date

petitioner was sentenced.

Accordingly, the period in which petitioner could file his federal habeas

petition pursuant to the AEDPA expired on January 3, 2022, one year later. As the

Petition was not filed until October 5, 2023, it is untimely by one year and

approximately nine months, absent any applicable tolling.

Title 28 U.S.C. § 2244(d)(2) provides that the “time during which a properly

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

the pertinent judgment or claim is pending shall not be counted toward” the one-year

statute of limitations period. Petitioner “bears the burden of proving that the statute

of limitations was tolled.” Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010).

Here, from the face of the FAP, it does not appear that petitioner is entitled to

statutory tolling because he alleges that he did not challenge his conviction either

directly or collaterally prior to January 3, 2022, when the statute of limitations in

petitioner’s case expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.

2003) (§ 2244(d) does not permit the reinitiation of the limitations period that ended

before a state petition is filed).

In addition to statutory tolling, the limitations period may also be subject to

equitable tolling if petitioner can demonstrate both that: (1) He has been pursuing his

rights diligently; and (2) some extraordinary circumstance stood in his way. Holland

v. Florida, 560 U.S. 631, 649 (2010). It is a petitioner’s burden to demonstrate that

he is entitled to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.

2002). Here, it does not appear from the face of the FAP that petitioner has a basis

for equitable tolling, or that he has met his burden of demonstrating such.

Finally, in rare and extraordinary cases, a plea of actual innocence can serve as

a gateway through which a petitioner may pass to overcome the statute of limitations

otherwise applicable to federal habeas petitions. McQuiggin v. Perkins, 133 S. Ct.

1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en

banc). “[A] petitioner does not meet the threshold requirement unless he [or she]

persuades the district court that, in light of the new evidence, no juror, acting

reasonably, would have voted to find him [or her] guilty beyond a reasonable doubt.”

Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995). In order to make a credible

claim of actual innocence, a petitioner must “support his allegations of constitutional

error with new reliable evidence – whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence – that was not

presented at trial.” Schlup, 513 U.S. at 324. The habeas court then “consider[s] all

the evidence, old and new, incriminating and exculpatory, admissible at trial or not.”

Lee, 653 F.3d at 938 (internal quotations omitted; citing House v. Bell, 547 U.S. 518,

538 (2006)). On this record, the Court “must make a ‘probabilistic determination

about what reasonable, properly instructed jurors would do.’” House, 547 U.S. at 538

(quoting Schlup, 513 U.S. at 329). Unexplained or unjustified delay in presenting

new evidence is a “factor in determining whether actual innocence has been reliably

shown.” Perkins, 133 S.Ct. at 1928, 1935; Schlup, 513 U.S. at 332 (“A court may

consider how the timing of the submission and the likely credibility of a [petitioner’s]

affiants bear on the probable reliability of . . . evidence [of actual innocence].”).

Here, petitioner has not submitted new, reliable evidence to cast doubt on his

conviction to permit the Court to consider his apparently otherwise time-barred

claims.

For the reasons discussed above, absent a basis for tolling, petitioner’s habeas

petition appears to be barred by the one-year limitations period under 28 U.S.C. §

2244(d)(1).

Petitioner’s Options Going Forward

The Ninth Circuit has stated that lower courts “‘have no obligation to act as

counsel or paralegal to pro se litigants.’” Ford v. Pliler, 590 F.3d 782, 787 (9th Cir.

2009) (quoting Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338

(2004)). But the Ninth Circuit has also recognized that courts may provide pro se

litigants with “accurate instruction” before dismissing a “mixed” petition containing

both exhausted and unexhausted claims. See id. at 786 (“The district court gave [the

petitioner] accurate instruction before dismissing his mixed habeas petitions without

prejudice. Pliler does not allow us to require anything more.”). Petitioners with

fully unexhausted petitions have some of the same options. See Mena v. Long, 813

F.3d 907, 912 (9th Cir. 2016); Henderson, 710 F.3d at 874. Accordingly, the Court

presents petitioner with the following options:

Option 1:

If petitioner contends that he has, in fact, exhausted his state court remedies on

the grounds raised in his FAP, he should clearly explain this in a written response to

this Order to Show Cause. Further, if petitioner contends that in fact he does not

currently have a petition pending for review that may moot his FAP, he should also

clearly explain in a written response. The written response must be filed on or

before March 7, 2024. Petitioner should attach to his response copies of any

documents establishing that grounds One through Five are indeed exhausted, and that

he does not have a matter pending before the California Supreme Court. (Petitioner

may also file a response, and include a notice that, if the Court still finds the FAP to

be unexhausted, he alternatively selects one of the other options discussed below.)

Option 2:

Petitioner may request a voluntary dismissal of this action without prejudice

pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is

attached for petitioner’s convenience. The Court advises petitioner, however, that

if petitioner should later attempt to again raise any dismissed claims in subsequent

habeas petition, those claims may be time-barred under the statute of limitations in 28

U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a State

court.”).

Option 3:

If petitioner contends that some of his claims are unexhausted but some are not,

petitioner may request a voluntary dismissal of only the unexhausted claims and elect

to proceed on only his exhausted claims. Petitioner may also use the attached

Notice of Dismissal form in order to select this option. The Court advises

petitioner, however, that if petitioner elects to proceed now with only certain claims,

any future habeas petition containing the dismissed grounds for relief or other claims

that could have been raised in the instant petition may be rejected as successive (or

may be time-barred).

Option 4:

Pursuant to Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 161

L.Ed.2d 440 (2005), and Mena v. Long, 813 F.3d at 910-12, petitioner may ask the

Court to stay all of the claims in the FAP while petitioner returns to the state courts to

exhaust his already pled but unexhausted claims. To obtain a stay of this case

pursuant to Rhines or Mena, petitioner is required to: (a) Show good cause for his

failure to exhaust the grounds raised in the FAP in state Court earlier; and (b) show

that all grounds are not “plainly meritless.” See id. at 277. (Petitioner also may

request a Rhines stay, and include a notice that, if the court denies the Rhines stay, he

alternatively selects one of the other options.)

Option 5:

If petitioner contends some of his claims are unexhausted but some are not,

pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on

other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), petitioner may

dismiss his unexhausted claims and ask the Court to stay his remaining, fully

exhausted claims while he returns to the state courts to exhaust his dismissed claims.

The Court advises petitioner, however, that “[a] petitioner seeking to use the Kelly

procedure will be able to amend his unexhausted claims back into his federal petition

once he has exhausted them only if those claims are determined to be timely. And

demonstrating timeliness will often be problematic under the now-applicable legal

principles.” King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). Additionally, a

petitioner may only amend a new claim into a pending federal habeas petition after

the expiration of the limitations period if the new claim shares a “common core of

operative facts” with the claims in the pending petition. Mayle v. Felix, 545 U.S.

644, 659, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005). (Petitioner also may request a

Kelly stay, and include a notice that, if the Court denies the Kelly stay, he

alternatively selects one of the other options.)

Caution

Petitioner is cautioned that if he requests a stay and the Court denies the

request for a stay, or if petitioner contends that he has in fact exhausted his state court

remedies on all grounds and the Court disagrees, the Court may recommend that his

FAP be dismissed. Accordingly, as noted above, petitioner may select options in the

alternative.

In sum, in order to select Option 1, petitioner must file a response to this Order

to Show Cause showing all grounds are exhausted and/or timely, and that he does not

have a petition currently pending review before a state court. In order to select

Options 2 or 3, petitioner may file the attached Notice of Dismissal form and fill it

out according to his choice. In order to select Options 4 or 5, petitioner must file a

written response requesting a stay pursuant to either Rhines or Kelly. With Options

1, 4, or 5, petitioner may select an alternative option in the event the Court finds

certain claims unexhausted and/or denies the request for a stay. Whichever option

petitioner selects, petitioner must file and serve the responding document clearly

stating the option selected no later than March 7, 2024.

The Court warns petitioner that failure to timely file and serve a response

as directed in this Order will result in a recommendation that this action be

dismissed without prejudice for failure to exhaust state remedies, for failure to

prosecute, and/or for failure to obey court orders.