United States District Court, E.D. California
Gerald Haydn Worsley, Petitioner, Pro se, CORCORAN, CA.
ORDER TO DISMISS PETITION FOR VIOLATION OF THE ONE-YEAR STATUTE OF LIMITATIONS (Doc. 1) ORDER DIRECTING THE CLERK OF COURT TO ENTER JUDGMENT AND CLOSE THE CASE
ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE.
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his written consent to the jurisdiction of the Magistrate Judge for all purposes on September 4, 2014. (Doc. 5).
The instant petition was filed on August 25, 2014. After a preliminary review of the petition revealed that the petition may be untimely and should therefore be dismissed, the Court, on August 28, 2014, issued an Order to Show Cause why the petition should not be dismissed as untimely. (Doc. 4). On September 10, 2014, Petitioner filed his response, in which he contends that he is entitled to equitable tolling because he is not versed in the law and needed assistance from another inmate to proceed. (Doc. 6). For the following reasons, the Court finds Petitioner's claim of equitable tolling to be insufficient to avoid dismissal of the petition for violating the one-year limitation period. Accordingly, the Court will dismiss the petition as untimely.
A. Preliminary Review of Petition.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it " plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).
The Ninth Circuit, in Herbst v. Cook, concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. 260 F.3d at 1041-42. By issuing this Order to Show Cause, the Court is affording Petitioner the notice required by the Ninth Circuit in Herbst.
B. Limitation Period For Filing Petition For Writ Of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 522 U.S. 1008, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997). The instant petition was filed on August 25, 2014, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...