ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED

STEVE KIM, Magistrate Judge.

Petitioner is a California state prisoner serving a sentence of 236 years to life, plus 38 years, for second-degree robbery, assault with a firearm, and attempted second-degree robbery. (LD 1 at 480-82; LD 2 at 1366-76). On appeal, Petitioner raised three state-law claims, which the California Court of Appeal denied in a written opinion. (LD 3). Petitioner did not file a petition for review in the California Supreme Court. (LD 4). Instead, he later filed a state habeas petition in the California Supreme Court by attaching and resubmitting his direct-appeal opening briefs to the California Court of Appeal. (LD 5). The California Supreme Court denied the habeas petition with citation to In re Waltreus, 62 Cal.2d 218, 225 (1965). (LD 6). Petitioner then filed his federal habeas petition here in the same way that he had filed his state habeas petition — by attaching without change and incorporating by reference the opening briefs submitted to the California Court of Appeal on direct review. (ECF No. 1 at 11-37). For the reasons below, it plainly appears that Petitioner is not entitled to habeas relief. See 28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases; L.R. 72-3.2. Thus, he is ordered to show cause why the Petition should not be dismissed.

First, Petitioner's claims are not exhausted. A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his remedies in state court. See 28 U.S.C. § 2254(b)(1). To satisfy this requirement, a petitioner must "fairly present" the substance of his claim to the state court. Picard v. Connor, 404 U.S. 270, 275 (1971). It is not sufficient to raise only the facts supporting the claim; rather, "the constitutional claim . . . inherent in those facts" must be brought to the attention of the state court. Id. at 277. "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Here, none of Petitioner's claims in state court alleged a violation of the Constitution or federal law. Thus, his claims are unexhausted because "a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee[.]" Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

Second, Petitioner's claims were procedurally defaulted in state court. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The California Supreme Court denied his claims on collateral review with citation to In re Waltreus, 62 Cal.2d 218, 225 (1965), which bars claims on state habeas (subject to exceptions not applicable here) that were raised and rejected on direct appeal. Ordinarily, a Waltreus denial is considered neither a ruling of procedural default nor a ruling on the merits where the claim at issue has been decided on the merits by the California Supreme Court on direct appeal. See Hill v. Roe, 321 F.3d 787, 790 (9th Cir. 2003). But there remains an exception where, as here, the petitioner fails to file a petition for review on direct appeal, thereby procedurally forfeiting "his only chance to present properly his claim to the California Supreme Court." Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996). In that narrow circumstance, which is present here, Petitioner has "deprived the highest state court of an opportunity to address his claim in the first instance, and his claim is procedurally defaulted." Id. (citing Coleman, 501 U.S. at 732).1

Procedural default may be excused if "the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Cause is established where "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice "[t]he habeas petitioner must show `not merely that the errors at. . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id. at 494 (emphasis omitted) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). And a fundamental miscarriage of justice occurs only when a constitutional violation probably resulted in the conviction of a defendant who is actually innocent. See id. at 495-96. Petitioner has not demonstrated that either of these exceptions applies here.

Third, the Petition is barred by the statute of limitations. Petitioner concedes that his petition is untimely because it was filed more than one year after his conviction became final (accounting for statutory tolling) in October 2013. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). However, he argues he is entitled to equitable tolling from October 2013 to November 2015 because of various mental limitations and health problems. (ECF No. 19). To obtain equitable tolling, Petitioner must show both (1) "that some extraordinary circumstance stood in his way and prevented timely filing," and (2) "that he has been pursuing his rights diligently." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Here, although Petitioner has attempted to make the case for extraordinary circumstances based on his alleged mental and physical limitations, he has not explained how those limitations (even if true and assumed to be extraordinary) stood in the way of timely filing, nor has he indicated the ways in which he was diligently pursuing his rights. See Luna v. Kernan, 784 F.3d 640, 649-50 (9th Cir. 2015).

To establish that his mental and physical limitations "prevented" him from timely filing, Petitioner must meet the "causation" requirement and show that "[b]ut for" his impairments, he would have filed his federal habeas petition on time. Id. at 649. Here, Petitioner generally describes his mental and physical conditions, but provides no evidence that his petition was filed late specifically because of — and not merely in spite of — those conditions. Further, to establish reasonable diligence, Petitioner must "show diligence through the time of filing, even after the extraordinary circumstances have ended." Id. at 651. Petitioner fails to supply any medical timing evidence of when his mental or physical impairments started or stopped, making it impossible to determine if reasonable diligence was exercised and, if so, for what periods of time. Given that Petitioner eventually filed his (late) federal habeas petition by just attaching and referencing the opening briefs filed in the California Court of Appeal, it is hard to see why such a facile task could not have been done much sooner during the one-year limitations period notwithstanding his alleged mental and physical challenges.

Finally, Petitioner's claims are not cognizable on federal habeas review. Just as he argued on direct appeal, Petitioner challenges here (1) the denial of his request under People v. Marsden, 2 Cal.3d 118 (1970), to substitute appointed counsel in the middle of trial; (2) the denial of his motion under People v. Superior Court (Romero), 13 Cal.4th 497 (1996), to strike his prior convictions in the interests of justice for sentencing; and (3) the trial court's failure to sua sponte stay his sentence for attempted robbery under California Penal Code § 654 on the ground that it punished him for the same conduct underlying his robbery convictions. (ECF No. 1 at 11-37). Because these claims attack only the California state court's application of its own state's laws, they raise no constitutional claims cognizable on federal habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002) (claim for resentencing under Romero not cognizable on federal habeas), vacated and remanded on other grounds, Mayle v. Brown, 538 U.S. 901 (2003); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1999) (alleged violation of Cal. Penal Code § 654 is state-law claim not cognizable in federal habeas proceeding). Indeed, the Court of Appeal's conclusions rejecting Petitioner's claims under California state law are binding here. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Hence, "it is perfectly clear that the petitioner has no chance of obtaining relief" on any of these unexhausted state-law claims.2 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).

THEREFORE, Petitioner is ORDERED TO SHOW CAUSE why the Petition should not be dismissed as unexhausted, procedurally defaulted, untimely, and/or not cognizable on federal habeas review. Petitioner's response is due within 30 days of the date of this order. Failure to respond to the order may result in dismissal of this action for lack of prosecution and failure to obey court orders.

IT IS SO ORDERED.