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Cavette v. Hill

United States District Court, C.D. California

February 19, 2014

SHAWN CAVETTE, Petitioner,
v.
RICK HILL, Warden, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On February 3, 2014, Petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears that the one-year statute of limitations has expired.

The court, therefore, orders Petitioner to show cause, on or before March 19, 2014, 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 December 6, 2010, Petitioner pled guilty to first degree burglary and admitted a prior conviction for assault with a deadly weapon and three prior prison terms. (Petition at 2); People v. Cavette, 2011 WL 5579192, *1 (2011). Petitioner was sentenced to 13 years in prison. ( Id. ) On November 17, 2011, the California Court of Appeal affirmed the conviction. ( Id. at 3.)[1] Petitioner did not file a petition for review in the California Supreme Court. (Petition at 3.)

On August 13, 2012, Petitioner filed a habeas petition in the California Supreme Court, which was summarily denied on November 14, 2012. ( Id. at 4); see California Appellate Courts online docket in Case No. S204676.

On February 3, 2014, Petitioner filed the instant petition in this court in which he raises two grounds. (Petition at 5-6.)

II.

STATUTE OF LIMITATIONS

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)

The Court of Appeal affirmed Petitioner's conviction on November 17, 2011. Because Petitioner did not file a petition for review with the California Supreme Court, his conviction became final 40 days later on December 27, 2011. See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. ...


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