United States District Court, C.D. California
ORDER TO SHOW CAUSE RE UNTIMELINESS AND JURISDICTION
RALPH ZAREFSKY, District Judge.
The Court issues this Order To Show Cause directed to Petitioner because it appears that (1) both claims in this habeas action are untimely and (2) the first claim is barred as an unauthorized successive challenge to his 2006 sentence.
I. POSSIBLE UNTIMELINESS
A. Applicable Law
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a portion of which established a one-year statute of limitations for bringing a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the limitations period commences on the date a petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1), but for convictions that became final before AEDPA took effect, the limitation period begins with AEDPA's effective date of April 24, 1996. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).
The time spent in state court pursuing collateral relief in a timely manner is excluded, see 28 U.S.C. § 2244(d)(2), and the statute also is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 648, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).
This Court may raise sua sponte the question of the statute of limitations bar, so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).
B. Procedural History
Petitioner indicates that he signed the current petition on February 3, 2014. From the face of the petition and from judicially-noticeable materials, the Court discerns as follows:
(a) In 1991 - in the case to which the Court hereafter refers as Hill I to distinguish it from later criminal cases - Petitioner entered a negotiated plea of guilty to charges of robbery, attempted robbery, attempted murder and a firearm-use enhancement. He was sentenced to 20 years in prison. See Pet. ¶ 2. He asserts here that his plea bargain included the following special term. Although he had committed multiple crimes, the crimes would count as only one prior conviction, for sentence enhancing purposes, if Petitioner were to offend again.
(b) He did. In 2006, Petitioner was convicted in Los Angeles County Superior Court of robbery with use of a firearm and being a felon in possession of a firearm. Based in part on his prior convictions, he was sentenced to 45 years to life in prison. See Pet. in Hill v. Smalls, No. CV 10-3957 (hereafter Hill III, with a short-lived 2009 case serving as Hill II ), ¶ 2; Clerk's Transcript in Hill III at 127-28. One of Petitioner's two current claims is that the 2006 "Third Strike" sentence violated his 1991 plea agreement, in that the judge in 2006 construed the 1991 case as supplying multiple sentence-enhancing "strikes" rather than just one. But as noted below, Petitioner did not assert such a claim in the trial court or elsewhere until 2013.
(c) The California Court of Appeal affirmed the 2006 conviction, and on July 9, 2008, the California Supreme Court denied further direct review. See Hill III Pet. ¶¶ 3-4. Petitioner does not appear to have sought certiorari in the United States Supreme Court. His 2006 conviction therefore became final after October 8, 2008, when the high court's 90-day deadline for seeking certiorari expired. See SUP. CT. R. 13.1. His one-year limitations period for filing in this Court began to run on that date.
(d) One week later on October 15, 2008, Petitioner tolled the statute of limitations by filing the first of three unsuccessful state habeas petitions. See Hill III Pet. ¶ 6(a)(5). The California Supreme Court denied his third petition on June 10, 2009. Id. ¶ 6(c)(5). Petitioner's limitations period began to run again thereafter with 358 days remaining. Unless he tolled the statute again, his limitations period expired 51 weeks later, after Friday, June 4, 2010.
(e) On July 2, 2009, Petitioner filed a habeas action in this Court, which dismissed the case as unexhausted on May 4, 2010. See docket in ...