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Anderson v. Valenzuela

United States District Court, C.D. California

January 9, 2015

E. VALENZUELA, Warden, Respondent.


JEAN ROSENBLUTH, Magistrate Judge.

On December 31, 2014, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody. The Petition challenges his 1994 25-years-to-life sentence in Los Angeles County Superior Court for assault with a deadly weapon. (Pet. at 2.) Petitioner raises a single claim, that he "received a sentence enhancement based on a dismissed allegation in violation of Due Process Clause of the 14th Amendment" (id. at 5), which he apparently raised in state-court habeas petitions beginning in early 2014 (Pet., Exs. at last tab).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petitioner generally has one year from the date his conviction became final to file a federal habeas petition. See 28 U.S.C. § 2244(d). That statute provides:

(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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

For those whose judgment became final before AEDPA was enacted, as Petitioner's apparently did, the limitation period runs from AEDPA's date of enactment - that is, April 24, 1996. See Wood v. Milyard, 132 S.Ct. 1826, 1831 (2012).

Petitioner's petition for review was denied on January 17, 1996. (Pet. at 3.) Under Wood, he thus had until April 24, 1997, to file his federal Petition. He did not file it until nearly 18 years later. He apparently did not file his first state habeas petition raising the same claim until sometime in early 2014. No statutory tolling is available when the first state habeas petition was filed after the expiration of the limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that § 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if state petition was timely filed).

Petitioner offers no explanation or excuse for the nearly 20-year delay in filing his Petition, and indeed it is hard to imagine one. See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (noting that equitable tolling of 20 years "would be difficult to justify"). There is nothing about Petitioner's claim that he should not have known at the time of his sentencing. It is true that in certain circumstances, a habeas petitioner may be entitled to equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). But he must show that (1) he has been pursuing his rights diligently and (2) "some extraordinary circumstance stood in his way." See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). This Petitioner has not done.

A district court has the authority to raise the statute-of-limitations issue sua sponte when untimeliness is obvious on the face of a petition; it may summarily dismiss the petition on that ground under Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts, as long as the court gives petitioner adequate notice and an opportunity to respond. Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

IT THEREFORE IS ORDERED that on or before February 6, 2015, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action because it is untimely for the reasons stated above. If Petitioner seeks to rely on the equitable-tolling doctrine, he must provide detailed factual allegations and evidentiary support, at least through his own sworn declaration, demonstrating that an "extraordinary circumstance" stood in his way and that he was reasonably diligent in trying to circumvent it. Further, Petitioner is advised that his failure to timely and sufficiently comply with this Order may result in his Petition being dismissed, for the reasons stated herein and for failure to prosecute.

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