United States District Court, C.D. California
ORDER TO SHOW CAUSE
ROBERT N. BLOCK, Magistrate Judge.
On or about February 26, 2015, petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein. The Petition purports to be directed to a conviction sustained by petitioner in Los Angeles County Superior Court in 2011.
Since this action was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") on April 24, 1996, it is subject to the AEDPA's one-year limitation period, as set forth at 28 U.S.C. § 2244(d). See Calderon v. United States District Court for the Central District of California (Beeler) , 128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 and 118 S.Ct. 1389 (1998). 28 U.S.C. § 2244(d) 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 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."
Here, pursuant to Porter v. Ollison , 620 F.3d 952, 954-55 (9th Cir. 2010) (noting that it is proper to take judicial notice of "any state court dockets or pleadings that have been located (including on the Internet)"), the Court takes judicial notice from the California Appellate Courts website that petitioner's Petition for Review was denied by the California Supreme Court on September 11, 2013. Thus, "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review" was December 10, 2013, when the 90-day period for petitioner to petition the United States Supreme Court for a writ of certiorari expired. See Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999); Beeler , 128 F.3d at 1286 n.2. Moreover, given the nature of petitioner's claims herein, it does not appear that any of the other "trigger" dates under 28 U.S.C. § 2244(d)(1) apply here. See Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance"). Thus, unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was December 10, 2014. See Patterson v. Stewart , 251 F.3d 1243, 1246 (9th Cir. 2001); Beeler , 128 F.3d at 1287-88.
28 U.S.C. § 2244(d)(2) provides:
"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."
In Nino v. Galaza , 183 F.3d 1003 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000), the Ninth Circuit construed the foregoing tolling provision with reference to California's post-conviction procedures. The Ninth Circuit held that "the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." See id. at 1006. Accord, Carey v. Saffold , 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (holding that, for purposes of statutory tolling, a California petitioner's application for collateral review remains "pending" during the intervals between the time a lower state court denies the application and the time the petitioner files a further petition in a higher state court). However, the statute of limitations is not tolled during the interval between the date on which the judgment of conviction became final and the filing of the petitioner's first collateral challenge. See Nino , 183 F.3d at 1006.
Here, it appears from the face of the Petition and the attachments thereto that petitioner's first collateral challenge was the Los Angeles County Superior Court habeas petition that he constructively filed on or about May 28, 2014. However, petitioner would not be entitled to any statutory tolling for the pendency of that petition, or for the interval between the June 19, 2014 denial of that petition and the July 21, 2014 constructive filing of his Court of Appeal habeas petition, or for the pendency of his Court of Appeal habeas petition, because the copies of the denial orders attached to the Petition reflect that (a) the Superior Court denied petitioner's habeas petition inter alia on the ground of unjustified delay, and (b) the California Court of Appeal denied petitioner's habeas petition with citations inter alia to In re Clark , 5 Cal.4th 750, 765-75 (1993) and In re Robbins , 18 Cal.4th 770, 780 (1998), which signified that the petition was being denied inter alia for untimeliness. See, e.g., Bennett v. Mueller , 322 F.3d 573, 581-83 (9th Cir.) (recognizing California's untimeliness bar is represented by citations to Robbins and Clark), cert. denied, 540 U.S. 938 (2003); see also Walker v. Martin, ___ U.S. ___ , 131 S.Ct. 1120, 1124, 179 L.Ed.2d 62 (2011) ("California courts signal that a habeas petition is denied as untimely by citing the controlling decisions, i.e., Clark and Robbins."). Consequently, neither petition qualified as having been "properly filed" within the meaning of § 2244(d)(2). See Pace v. DiGuglielmo , 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (holding that "time limits, no matter their form, are filing' conditions. Because the state court rejected petitioner's [state] petition as untimely, it was not properly filed, ' and he is not entitled to statutory tolling under § 2244(d)(2)."); see also Carey , 536 U.S. at 225-26 (noting that if the state court expressly holds delay was unreasonable, petition is no longer "pending"); Porter , 620 F.3d at 958 ("For tolling to be applied based on a second round, the petition cannot be untimely or an improper successive petition."); Bonner v. Carey , 425 F.3d 1145, 1149 (9th Cir. 2005) ("Under Pace, if a state court denies a petition as untimely, none of the time before or during the court's consideration of that petition is statutorily tolled.").
Moreover, although the California Supreme Court summarily denied petitioner's subsequent habeas petition without comment or citation of authority, the Court "looks through" that unexplained denial to the lower courts' reasoned denials on procedural grounds. See Ylst v. Nunnemaker , 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) ("[W]here, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits."); see also, e.g., Harrison v. Campbell, 254 Fed.Appx. 644, 645 (9th Cir. 2007) (citable for its persuasive value pursuant to Ninth Circuit Rule 36-3) (where a California superior court "clearly held that [petitioner's] state petition... was untimely[, ]' [t]he district court properly imputed this determination to the California Court of Appeal and Supreme Court, " due to "the presumption that the higher courts' unexplained orders leaving in effect the consequences of the lower court's decision rested on the same grounds as those articulated in the last reasoned decision"); Angel v. Yates, 2011 WL 1326838, at *3 (C.D. Cal. Mar. 17, 2011) (holding that, pursuant to the Ylst "look through" doctrine, the petitioner was not entitled to statutory tolling for the time any of his three state habeas petitions were pending where the Superior Court had issued a reasoned order denying the petition in part on the ground that it was untimely and the higher courts had issued silent denials), Report and Recommendation Adopted by 2011 WL 1326822 (C.D. Cal. Mar. 31, 2011); Vigil v. Small, 2010 WL 1852498, 5 ...