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Guy v. Soto

United States District Court, Ninth Circuit

May 6, 2013

RENE GUY, Petitioner,
v.
J. SOTO, Respondent.

ORDER DISMISSING HABEAS PETITION AS TIME-BARRED

TERRY J. HATTER, Jr., Senior District Judge.

Before the Court is a petition for writ of habeas corpus ("Petition") brought by Rene Guy ("Petitioner"), a state prisoner proceeding pro se. For the reasons discussed below, the Petition is dismissed with prejudice because the Court finds it is time-barred.

I. BACKGROUND

The Petition is brought pursuant to 28 U.S.C. § 2254 and raises two claims directed at an August 26, 1993 conviction in the California Superior Court for Los Angeles County. Petitioner was convicted of second degree murder, assault with a firearm, second degree robbery, and firearm enhancements, and was sentenced to an indeterminate term of 15 years to life in state prison (case no. BA066376).

Pursuant to the Court's duty to screen § 2254 petitions, the Magistrate Judge found it plainly appeared from the face of the Petition and relevant state court records that this action was barred by the one-year statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(d)(1)(A). Accordingly, on March 4, 2013, the Magistrate Judge issued an order to show cause that notified Petitioner the action appeared to be time-barred absent some basis for tolling or an alternative start to AEDPA's one-year limitations period under 28 U.S.C. § 2244(d)(1)(B)-(D). (3/4/13 Order to Show Cause re Dismissal of Petition for Writ of Habeas Corpus by a Person in State Custody as Time-barred ("OSC") [5].) The OSC explained the various bases for tolling and directed Petitioner to show cause why the action should not be dismissed as time-barred by filing a written response no later than March 22, 2013. (OSC at 4-8.)

Despite the fact Petitioner failed to file his Response to the OSC ("Response") [7] until April 24, 2013, more than one month after the March 22, 2013 deadline, in the interests of justice, the Court considers Petitioner's untimely Response and addresses his arguments below. The matter now stands submitted for decision.

II. DISCUSSION

A. Standard of Review

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to "promptly examine" a habeas petition and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Local Rule 72-3.2 of this Court also provides "[t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an untimely habeas petition may be dismissed sua sponte if the petitioner receives adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).

B. Statute of Limitations

The Petition is governed by AEDPA, which establishes a one-year statute of limitations for state prisoners to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1); see also Lindh v. Murphy, 521 U.S. 320, 327-37, 117 S.Ct. 2059 (1997). In most cases, the limitations period is triggered by "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Further, where the conviction became final before AEDPA's enactment, a petitioner had until April 24, 1997, to file a federal habeas petition. See Lindh, 521 U.S. at 322 (AEDPA was signed into law on April 24, 1996); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the one-year, grace period for challenging convictions finalized before AEDPA's enactment ended on April 24, 1997).

The face of the Petition and relevant state court records[1] establish the following relevant facts. Petitioner was convicted of the above offenses on August 26, 1993, and sentenced on September 28, 1993. On November 17, 1994, the California Court of Appeal affirmed the judgment (case no. B079862). The California Supreme Court then denied review of the court of appeal's decision on February 1, 1995 (case no. S044063). Petitioner has not alleged, and it does not appear, that he filed a petition for certiorari with the United States Supreme Court. (Pet. at 3-5[2]; state court records.)

Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on May 2, 1995, the ninetieth day after the state high court denied his petition for review and the last day for him to file a petition for certiorari with the Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Because the conviction became final before AEDPA's April 24, 1996 enactment date, Petitioner had until April 24, 1997, to file a federal habeas petition. Patterson, 251 F.3d at 1246. Petitioner did not constructively file his pending Petition until February 5, 2013 - 5, 766 days (nearly 16 years) after the expiration of the limitations period.[3] ...


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