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Delgado v. Rackley

United States District Court, C.D. California

May 14, 2014

LUCIANO DELGADO, Petitioner,
v.
RON RACKLEY, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On April 28, 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 June 16, 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 January 6, 1992, Petitioner pled guilty to one count of second degree murder and one count of attempted murder, and admitted a gun enhancement. (Petition at 2-3.) Petitioner was sentenced to 20 years to life. (Petition, Ex. A.) He did not appeal. (Petition at 3.)

On July 24, 2013, the Superior Court summarily denied Petitioner's amended habeas petition. (Petition, Ex. Q.) On September 26, 2013, the California Court of Appeal denied Petitioner's habeas petition because he had "not stated facts sufficient to support relief." ( Id., Ex. R.) On January 29, 2014, the California Supreme Court summarily denied Petitioner's habeas petition. ( Id., Ex. S.)

On April 28, 2014, Petitioner filed the instant petition in this court in which he raises five grounds. (Petition at 6-7.)

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)

Because Petitioner did not appeal, his conviction became final 60 days after his conviction (January 6, 1992) on March 6, 1992. California Rules of Court 8.308(a) (formerly Rule 30.1). Because the conviction became final before the AEDPA was enacted, Petitioner had until April 24, 1997, to file a federal habeas petition. Laws v. ...


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