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Bojorquez v. Unknown

United States District Court, C.D. California

March 10, 2014

MICHAEL BOJORQUEZ, Petitioner,
v.
UNKNOWN Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On March 3, 2014, Petitioner filed a Petition for Writ of 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 April 10, 2014, why the court should not recommend dismissal of the petition with prejudice based on expiration of the one-year statute of limitations.

I.

PROCEDURAL BACKGROUND

On April 9, 2010, a Los Angeles County jury convicted Petitioner of two counts of home invasion robbery, three counts of first degree residential robbery, one count of attempted first degree residential robbery, and two counts of first degree residential burglary. (Petition at 2[1]); People v. Bojorquez, 2011 WL 3338689, *1 (2011). The court sentenced Petitioner to 13 years in prison. ( Id. ) On August 4, 2011, the California Court of Appeal affirmed the judgment with modifications that are irrelevant to the convictions. Bojorquez, 2011 WL 3338689 at *8. On November 2, 2011, the California Supreme Court denied review. California's online Appellate Courts Case Information in Case No. S196124.

Petitioner did not file any state habeas petitions. (Petition at 6.)

On March 3, 2014, Petitioner filed the instant petition in this court in which he raises three grounds.

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). The only subdivision relevant here is (d)(1)(A).

The California Supreme Court denied review on direct appeal on November 2, 2011. Petitioner's conviction became final 90 days later on January 31, 2012. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Absent tolling, the statute of limitations ...


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