CLARENCE A. GIBSON, Petitioner,
G. D. LOUIS, Warden PBSP, Respondent.
ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AS TIME-BARRED
ARTHUR NAKAZATO, Magistrate Judge.
Before the Court is a petition for writ of habeas corpus ("Petition") brought by Clarence A. Gibson ("Petitioner"), a state prisoner proceeding pro se. The Petition is brought pursuant to 28 U.S.C. § 2254 and, liberally construed, raises two claims directed at a 29-year-to-life sentence that was imposed on February 7, 1992, pursuant to Petitioner's conviction in the California Superior Court for Los Angeles County. Petitioner was convicted of first degree murder and second degree robbery with a firearm enhancement (case no. BA016268).
For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is considerably time-barred.
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 court gives the petitioner l 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 the Antiteuorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). 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).
However, where the conviction became final before AEDPA's enactment, a petitioner had until April 24, 1997, to file a federal habeas petition. See Lindh v. I Murphy, 521 U.S. 320, 322, 117 S.Ct. 2059 (1997) (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, attached exhibits, and relevant state court records establish the following facts. Petitioner was convicted of the above offenses on September 11, 1991, and sentenced on February 7, 1992. 0n December 27, 1993, the California Court of Appeal affirmed the judgment (case no. B066355). The California Supreme Court then denied review of the court of appeal's decision on March 23, 1994 (case no. S037699). Petitioner has not alleged, and it does not appear, that he filed a petition for certiorari with the United States Supreme Court. (Pet. at 2; state court records.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on June 21, 1994, 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 April 21, 2013 - 5, 841 days (approximately 16 years) after the expiration of the limitations period Accordingly, absent some basis for tolling or an alternative start date to the limitations period under 28 U.S.C. § 2244(d)(1), the pending Petition is considerably time-barred.
C. Statutory Tolling
AEDPA includes a statutory tolling provision that suspends the limitations period for the time during which a "properly-filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v. Hall , 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey , 425 F.3d 1145, 1148 (9th Cir. 2005). An application is "pendmg" until has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134 (2002). However, to qualify for statutory tolling, a state habeas petition must be filed before the expiration of AEDPA's limitations period. See Ferguson v. Palmateer, F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); see also Webster ...