The opinion of the court was delivered by: Hon. Andrew J. Wistrich, U.S. Magistrate Judge
Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY
Petitioner filed this petition for a writ of habeas corpus on September *fn1
From the face of the petition, it appears that it is barred by the one-year period of limitation set forth in the AEDPA. 28 U.S.C. § 2244(d)(1). According to the petition, petitioner was convicted in 2005. [Petition at 1]. The California Court of Appeal affirmed his conviction on September 29, 2006. [Petition at 2]. Although petitioner alleges that he filed a petition for review in the California Supreme Court, he indicates that he does not know the number of that case, or the date of the court's decision, and reference to the California Supreme Court's docket does not reflect that any such petition was filed. [See Petition at 2; appellatecases.courtinfo.ca.gov]. Thus, it appears that petitioner's conviction became final in November 2006. Consequently, petitioner had one year -- or until November 2007 -- to file a federal petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999); Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 & 523 U.S. 1061 (1998), overruled on other grounds by Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc), cert. , 526 U.S. 1060 (1999).
This petition was not filed until September 30, 2011, nearly four years after the limitation period expired. Thus, absent grounds for statutory, 28 U.S.C. § 2244(d)(1) and (2), or equitable tolling of the limitation period, the petition is time-barred.
It does not appear that petitioner filed any state habeas petitions during the relevant period. Although petitioner filed habeas petitions in state court, it is not clear that the first such petition was filed prior to the expiration of the limitation period. Therefore, it is likely that petitioner's state habeas petitions do not toll the already-expired limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"), cert. denied, 540 U.S. 924 (2003).
Even assuming that petitioner did file his first state petition before the expiration of the limitation period, the docket of the California Supreme Court reveals that the last habeas petition was denied on March 11, 2009. Even if the limitation period were tolled until that date, this petition still would be untimely, because it was not filed for more than two years after that date.
Furthermore, petitioner has not provided an adequate explanation for the lengthy delay in filing his federal habeas petition which might entitle him to equitable tolling of the one year statute of limitation. The Supreme Court explained that "a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 & n.8 (2005). "In this circuit, equitable tolling of the filing deadline for a habeas petition is available 'only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (citing Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)(quoting Kelly, 163 F.3d at 541)). Equitable tolling may be appropriate when "external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Lott, 304 F.3d at 925(citation omitted).
Petitioner shall show cause why the petition should not be dismissed as untimely by filing a response to this order within twenty-eight (28) days of the date of this order. In the response to this order, petitioner shall make clear the dates on which any state petition was filed and shall, if possible, attach copies of any state petition and the state court's decision addressing each petition. All facts relied upon by petitioner must be proved by testimony contained in a declaration signed under penalty of perjury, see 28 U.S.C. §1746, or in properly authenticated documents. Petitioner must ...