United States District Court, C.D. California, Western Division
Marcos Ceras, Petitioner, Pro se, Calipatria, CA.
ORDER TO SHOW CAUSE RE DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
ARTHUR NAKAZATO, UNITED STATES 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 Marcos Ceras (" Petitioner"), a state prisoner proceeding pro se . Petitioner was convicted, following a jury trial in the California Superior Court for Los Angeles County, of attempted murder, shooting at an inhabited dwelling, and assault with a firearm, with findings that he personally fired a gun and personally inflicted great bodily injury. Petitioner was sentenced to a term of ten years and eight months, plus fifty years to life, in state prison (case no. PA047668).
The pending Petition raises six claims challenging Petitioner's judgment of conviction. 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 and the claims are procedurally defaulted.
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." 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.
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, 164 L.Ed.2d 376 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001).
As for procedural default, " a habeas court . . . should exercise its discretion to raise procedural default sua sponte if doing so furthers" the interests of comity, federalism, and judicial efficiency. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); see also Windham v. Merkle, 163 F.3d 1092, 1100-01 (9th Cir. 1998). This principle " applies with even stronger force where, as here, the State has not waived the defense" because it has not yet been served with the petition or filed any response. Boyd, 147 F.3d at 1128. Where the procedural default is " easily identifiable on the face of the petition, " it would " waste scarce judicial resources for the district court to cause the facially defective petition to be served on the State and to entertain the State's ensuing motion to dismiss." Id. However, before summarily dismissing a petition as procedurally defaulted, the court must give a petitioner notice of the procedural default and an opportunity to respond, and must make clear to a pro se petitioner the procedural default at issue and the consequences for failing to respond. Id.
2.2 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 offenses on March 23, 2012. On April 17, 2013, the California Court of Appeal affirmed the judgment (case no. B240200). The California Supreme Court then denied review of the court of appeal's decision on July 10, 2013 (case no. S210801). Petitioner does not allege, and it does not appear, that he filed a petition for certiorari in the United States Supreme Court. (Pet. at 2-3; state court records; see also Supreme Court Docket, available on the Internet at http://www.supremecourt.gov.)
Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment became final on October 8 2013, 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 October 9, 2013, and ended on October 9, 2014. 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 November 19, 2014 -- forty-one 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.
2.2.1 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 ...