United States District Court, C.D. California
JOSE E. GRIMALDI, Petitioner,
CALIFORNIA CORRECTIONAL INST., Respondent.
ORDER TO SHOW CAUSE
ALICIA G. ROSENBERG, Magistrate Judge.
On May 14, 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 and Petitioner has failed to exhaust his administrative remedies.
The court, therefore, orders Petitioner to show cause, on or before June 23, 2014, why this court should not recommend dismissal of the petition based on expiration of the one-year statute of limitations and failure to exhaust administrative remedies.
In November 2010, a Los Angeles County jury convicted Petitioner of kidnapping during a carjacking, kidnapping to commit another crime, first degree ATM robbery, and second degree robbery. (Petition at 1-2.); see People v. Melendez, Case No. B237732, 2013 WL 541859 *2 (Cal.Ct.App. 2013). In December 2010, Petitioner was sentenced to two life term sentences. ( Id. at 1) On February 14, 2013, the California Court of Appeal affirmed the judgment, modified the sentence, and struck some of the convictions. ( Id. at 2.) Petitioner did not file a petition for review in the California Supreme Court. ( Id. )
Petitioner did not file any habeas petitions in California. ( Id. at 3.)
On May 8, 2014, Petitioner constructively filed the instant petition in Spanish in this court in which he raises one ground. (Petition at 5 & Proof of Service.)
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 February 14, 2013. Because Petitioner did not file a petition for review with the California Supreme Court, his conviction became final 40 days later on March 26, 2013. See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005). The statute of limitation expired ...