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Torres v. Johnson

United States District Court, C.D. California

April 24, 2015

CRYSTAL TORRES, Petitioner,
v.
D.K. JOHNSON, Respondent.

ORDER TO SHOW CAUSE

ROBERT N. BLOCK, Magistrate Judge.

On or about April 16, 2015, petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody herein.[1] The Petition is directed to the sentence petitioner received on May 31, 2011 in Los Angeles County Superior Court following her conviction pursuant to a nolo contendere plea. Petitioner purports to be making two claims challenging the constitutionality of her sentence based on the California Supreme Court's decision in People v. Vargas , 59 Cal.4th 635, 174 Cal.Rptr.3d 277, 328 P.3d 1020 (2014).

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).[2] 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 direct appeal was dismissed at appointed appellate counsel's request on December 9, 2011. Under Cal. R. Ct. 8.264(b)(2)(E), the dismissal became final on that date. Thus, for purposes of 28 U.S.C. § 2244(d)(1)(A), petitioner's judgment of conviction "became final by conclusion of direct review or the expiration of the time for seeking such review" on December 9, 2011.

Petitioner has made no contention that she was impeded from filing her federal petition by unconstitutional state action and thereby entitled to a later trigger date under § 2244(d)(1)(B). Moreover, the fact that California law did not provide the legal basis for petitioner's sentencing error claims until People v. Vargas was decided in 2014 does not constitute a state-created impediment for purposes of entitling petitioner to a later trigger date under § 2244(d)(1)(B). See Shannon v. Newland , 410 F.3d 1083, 1087-88 (9th Cir. 2005).

Moreover, petitioner has no basis for contending that she is entitled to a later trigger date under § 2244(d)(1)(C) with respect to either of her claims because the claim is based on a federal constitutional right that was initially recognized by the United States Supreme Court subsequent to the date her conviction became final and that has been made retroactively applicable to cases on collateral review.

Finally, for purposes of § 2244(d)(1)(D), the 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." See Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Here, neither of petitioner's claims purports to be based on facts of which petitioner was unaware or which could not have been discovered through the exercise of due diligence prior to December 9, 2011, the date her judgment of conviction became final. Indeed, petitioner was aware as of her sentencing date what her sentence was and how it was computed. Accordingly, petitioner has no basis for contending that she is entitled to a later trigger date under § 2244(d)(1)(D). See also Shannon , 410 F.3d at 1088 (rejecting contention that new California Supreme Court decision clarifying the law triggered a new one-year statute of limitations under § 2244(d)(1)(D)).

Accordingly, unless a basis for tolling the statute existed, petitioner's last day to file her federal habeas petition was December 9, 2012. See Patterson v. Stewart , 251 F.3d 1243, ...


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