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Eleson v. Lizarraga

United States District Court, E.D. California

February 26, 2015

ERIC RICHARD ELESON, Petitioner,
v.
JOE A. LIZARRAGA, et. al., Respondents.

ORDER TO SHOW CAUSE

STANLEY A. BOONE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On December 29, 2014, Petitioner filed the instant Petition.[1] (Pet., ECF No. 1). On April 28, 1995, Petitioner was convicted of Lewd or Lascivious Acts, in violation of Cal. Penal Code § 288(a), in the Tuolumne County Superior Court. (Pet. at 2).[2] Petitioner was sentenced to 85 years to life. (Pet. at 2).

Petitioner alleges the following grounds for relief in his federal petition: (1) Cal. Penal Code § 288 was not validly enacted, so the trial court lacked jurisdiction to convict and sentence him; (2) Cal. Penal Code § 667 is illegal because California did not seek authorization from the Appropriations Committee of the California Legislature for the greater amount of taxes necessary to pay for increased periods of incarceration, and it was not validly enacted; (3) Government officials' failure to respond to Petitioner's documents means that his allegations are true and he should be released; (4) The prosecutors and judges did not have the authority to act in his case, because the California Bar is not valid; (5) California has no jurisdiction over him; (6) The two sentence enhancements should be served after the indeterminate sentences are complete; and (7) His out-of-state conviction should not have been used to enhance the punishment of his California conviction involved in this petition.

I.

DISCUSSION

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 petition and any attached exhibits 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). In Herbst v. Cook, the Ninth Circuit 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.

B. Limitation Period for Filing a 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 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). As the instant petition was filed on October 13, 2014, 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 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 ...

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