United States District Court, C.D. California, Eastern Division
ORDER DISMISSING HABEAS PETITION AS TIME-BARRED
ARTHUR NAKAZATO, Magistrate 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 John Grein ("Petitioner"), a state prisoner proceeding pro se. Petitioner has consented to the Magistrate Judge's jurisdiction , and is currently the only party to this action. For the reasons discussed below, this action is dismissed with prejudice because the Court finds the Petition is time-barred. See Wilhelm v. Rotman, 680 F.3d 1113, 1118-21 (9th Cir. 2012) (magistrate judge properly dismissed action where prisoner consented and was the only party to the action).
The Petition raises one claim alleging Petitioner's sentence of twenty-five years to life, imposed in the California Superior Court for San Bernardino County on July 20 1990, pursuant to his conviction of first degree murder (case no. VCR4191), is "unauthorized by law" and violates due process.
Pursuant to the Court's duty to screen habeas petitions, the Magistrate Judge found it plainly appeared from the face of the Petition that this action was barred by the one-year statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244(d)(1). Accordingly, on November 5, 2014, the Magistrate Judge issued an order to show cause that notified Petitioner the action appeared to be time-barred absent some basis for tolling or an alternative start to AEDPA's one-year limitations period under 28 U.S.C. § 2244(d)(1)(B)-(D). (11/5/14 Order to Show Cause re Dismissal of Petition for Writ of Habeas Corpus by a Person in State Custody as Time-barred ("OSC") .) The OSC explained the various bases for tolling and directed Petitioner to show cause why the action should not be dismissed as time-barred by filing a written response by December 5, 2014. (OSC at 4-7.) Petitioner has filed his Response  (erroneously titled "Return"), and the matter now stands submitted.
2.1 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." Further, an untimely habeas petition may be dismissed sua sponte if the court gives the petitioner 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).
2.2 Statute of Limitations
The Petition is governed by 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). However, where the conviction became final before AEDPA's enactment, a petitioner had until April 24, 1997, to file a habeas petition. See Lindh v. Murphy, 521 U.S. 320, 322, 117 S.Ct. 2059 (1997) (AEDPA was signed into law on April 24, 1996); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the one-year grace period for challenging convictions finalized before AEDPA's enactment ended on April 24, 1997).
Petitioner was sentenced, and his judgment was pronounced, on July 20, 1990 (Resp., Ex. A), and neither the face of the Petition, Petitioner's state court records, nor Petitioner's Response indicate any direct appeal was filed. Consequently, the Court finds Petitioner's conviction became final for purposes of AEDPA's statute of limitations on September 18, 1990, several years before AEDPA's enactment. See CAL. CT. R. 8.308(a) (formerly Rule 30.1) (for criminal convictions in California, a notice of appeal must be filed within sixty days after the rendition of the judgment); see also Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010) (where the petitioner did not appeal his conviction to the California Court of Appeal, the conviction became final after the expiration of the sixty-day period for filing a notice of appeal). Further, the one-year grace period for Petitioner to challenge his sentence in a federal habeas petition, which ended on April 24, 1997, has long since expired. Patterson, 251 F.3d at 1246. Petitioner did not constructively file his pending Petition until October 6, 2014 - 6, 374 days and well over seventeen years 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)(B)-(D), the pending Petition is considerably time-barred.
2.3 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). An application is "pending" until it has achieved final resolution through the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134 (2002). However, to qualify for statutory tolling, a state habeas petition must be filed before the expiration of AEDPA's limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed."); see also ...