United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AS TIME-BARRED
ARTHUR NAKAZATO, District Judge.
Before the Court is a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 ("Petition") brought by Ruben Beltran ("Petitioner"), a state prisoner proceeding prose. The Petition challenges Petitioner's current state custody following a jury trial in the California Superior Court for Los Angeles County (case no. LA057526). Petitioner was convicted of aggravated sexual assault of a child and sentenced to 15 years to life.
For the reasons set forth below, Petitioner is ordered to show cause why his Petition should not be dismissed with prejudice because it is 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 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 Antiterrorism 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).
The Petition and Petitioner's relevant state court records establish the following facts. Petitioner was sentenced for the above offense on October 20, 2010. On December 8, 2011, the California Court of Appeal affirmed the judgment (case no. B229411). The California Supreme Court then denied review of the court of appeal's decision on February 29, 2012 (case no. S199554). Petitioner did not file a petition for certiorari with the United States Supreme Court. (Pet. at 2-3, 5; state court records.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on May 29, 2012, 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). The statute of limitations then started to run the next day, on May 30, 2012, and ended on May 30, 2013.28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day after the triggering event under Fed.R.Civ.P. 6(a)). Petitioner did not constructively file his pending Petition until March 16, 2014-290 days 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 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). Although Petitioner alleges he has not filed any state habeas petitions (Pet. at 3), his state court records establish that he filed one in the California Supreme Court on January 9, 2013, and that petition was summarily denied on March 13, 2013 (case no. S207892). (State court records.) Given sixty-three days of statutory tolling for the time Petitioner's state habeas petition was pending, AEDPA's limitations deadline was extended from May 30 to August 1, 2013. The pending Petition, constructively filed on March 16, 2014, is still untimely by 227 days.
Additionally, Petitioner filed a prior federal habeas action, which has no bearing on the Court's timeliness analysis. By AEDPA's express terms, the limitations period is only tolled during the pendency of "a properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2) (emphasis added). Section 2244(d)(2) does not toll the limitations period while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120 (2001). Further, the pending action cannot "relate back" to the prior action because that action was dismissed in its entirety for lack of jurisdiction, for Petitioner's failure to comply with the Court's orders, and for want of prosecution, and is no longer pending ( see CV 12-9529 DSF (AN), , ). Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006) ("[T]he relation back doctrine does not apply where the previous habeas petition was dismissed because there is nothing to which the new petition could relate back."). Moreover, Petitioner's attempt to circumvent this conclusion by falsely stating that the prior action is still pending, by writing his prior case number on the front page of ...