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Rodriguez v. Biter

United States District Court, Ninth Circuit

May 20, 2013

DAVID ORLANDO RODRIGUEZ, Petitioner,
v.
M. D. BITER, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On May 14, 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 June 20, 2013, why this court should not recommend dismissal of the petition with prejudice based on expiration of the one-year statute of limitations.

I.

PROCEDURAL BACKGROUND

On May 21, 1987, Petitioner pled guilty in Los Angeles County Superior Court to various crimes and was sentenced to 15 years to life. (Petition at 2.) Petitioner did not appeal. ( Id. at 3.)

On March 11, 2013, Petitioner filed a habeas petition in the California Supreme Court, which was summarily denied on May 1, 2013. See California Appellate Courts Case Information online docket in Case No. S209257; (Petition, Ex. A.)

On May 7, 2013, Petitioner constructively filed the instant federal petition in this court in which he raises two grounds, ineffective assistance of counsel and cumulative error. (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).

A. The Date on Which Conviction Became Final - § 2244(d)(1)(A)

Petitioner was convicted in 1987. Petitioner did not appeal; therefore, his conviction became final 60 days later. California Rules of Court 8.308(a) (formerly Rule 30.1). Because the conviction became final before the AEDPA was enacted, the limitations period expired on April 24, 1997. Laws v. Lamarque, 3 ...


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