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West v. Valenzuela

United States District Court, Ninth Circuit

April 29, 2013

SEAN JASON WEST, Petitioner,
v.
E. VALENZUELA, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On April 19, 2013, Petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears the one-year statute of limitations has expired.

The court, therefore, orders Petitioner to show cause, on or before May 29, 2013, why this court should not recommend dismissal of the petition with prejudice based on expiration of the one-year statute of limitations.

I.

BACKGROUND

In 1994 Petitioner was convicted of kidnapping for robbery and robbery, and sentenced to life plus two years with the possibility of parole. (Petition at 2.)

On January 6, 2009, Petitioner was denied parole. The Board of Parole Hearings ("Board") scheduled his next eligibility hearing seven years later. (Petition, Memo at 2.) Petitioner does not allege that he challenged the Board's 2009 denial by filing a habeas petition in the California Supreme Court. See also California Appellate Courts online docket (using Petitioner's first and last names as the search term).

On January 4, 2012, Petitioner filed a habeas petition before the California Supreme Court, which was summarily denied on April 11, 2012. (Petitioner, Memo at 1); see also California Appellate Courts online docket in Case No. S199172.[1] Petitioner apparently claimed that Marsy's Law violated the ex post facto clause.[2] (Petition, Memo at 1.)

On April 14, 2013, Petitioner constructively filed the instant federal petition in this court in which he claimed that "his parole denial" violated the ex post facto clause. (Petition at 5 & back of envelope.)

II.

DISCUSSION

The petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The AEDPA contains a one-year statute of limitations for a petition for writ of habeas corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D).

The AEDPA's statute of limitations applies to administrative decisions such as parole denials. Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003). For petitions challenging the denial of parole, the statute of limitations begins running under § 2244(d)(1)(D) on the date after the administrative decision became final. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2003) (under § 2244(d)(1)(D), the factual predicate of the ...


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