United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED AS TIME-BARRED
FREDERICK F. MUMM, United States Magistrate Judge.
11, 2016, Petitioner Robert Louis Grayson
(“Petitioner”), a California prisoner proceeding
pro se, filed a Petition for Writ of Habeas Corpus
by a Person in State Custody (“Petition”),
pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) The Petition
challenges Petitioner’s conviction and sentence for a
2012 conviction for burglary. (Pet. at 2.)
PERIOD FOR FEDERAL HABEAS PETITIONS
present proceedings were initiated after the April 24, 1996,
effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214 (1996). Accordingly, AEDPA’s timeliness
provisions apply, including a one-year limitations period
which is subject to both statutory and equitable tolling.
See 28 U.S.C. § 2244(d)(1). For those prisoners
whose convictions became final post-AEDPA, the one-year
period starts running from the latest of four alternative
dates set forth in 28 U.S.C. § 2244(d)(1)(A)-(D).
See, e.g., Patterson v. Stewart, 251 F.3d
1243, 1245-47 (9th Cir. 2001).
2244(d)(1)(A) provides that the one-year limitations period
“shall run from the latest of . . . the date on which
the [petitioner’s conviction] became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” If a petitioner’s
conviction is affirmed by an intermediate appellate court and
he does not appeal that decision to the state’s highest
court, his conviction becomes final for the purposes of
section 2244(d)(1)(A) when the period for seeking review from
the state’s highest court expires. Wixom v.
Washington, 264 F.3d 894, 897 (9th Cir. 2001). In
California, a petitioner’s period for seeking review
from the California Supreme Court expires forty days after
the Court of Appeal decision is filed. See Cal.R.
Ct. 8.264(b)(1) (“[A] Court of Appeal decision . . . is
final in that court 30 days after filing.”); Cal. R.
Ct. 8.500(e)(1) (“A petition for review must be . . .
filed within 10 days after the Court of Appeal decision is
final in that court.”).
California Court of Appeal decision affirming
Petitioner’s conviction was filed on June 21,
2013. Petitioner admits that he did not file a
petition for direct review with the California Supreme Court.
(Pet. at 3.) Official California court records confirm
Petitioner’s admission. Thus, for the purposes of
section 2244(d)(1)(A), Petitioner’s conviction became
final forty days after June 21, 2013, the day
Petitioner’s conviction was affirmed by the California
Court of Appeal. See Wixom, 264 F.3d at 897; Cal. R.
Ct. 8.264(b)(1), 8.500(e)(1). Accordingly, the one-year
limitations period expired on July 31, 2014. See
Patterson, 251 F.3d at 1245-47. Because Petitioner did
not initiate the current proceedings until July 11, 2016, the
present action is untimely, absent statutory or equitable
tolling. See 28 U.S.C. § 2244(d)(1); Fed. R.
Civ. Proc. 6(a).
28 U.S.C. § 2244(d)(2) provides that “[t]he 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.” However, a petitioner is not entitled to
statutory tolling if he filed his initial state habeas
petition after the one-year federal limitations period had
expired. Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003) (holding that 28 U.S.C. § 2244(d)
“does not permit the reinitiation of the limitations
period that has ended before the state petition was
states that he did not initiate any state habeas proceedings
until sometime in January 2016 (Pet. at 3-4), more than a
year after the federal one-year limitations period had
expired. Because § 2244(d) “does not permit the
reinitiation of the limitations period, ” Petitioner is
not entitled to statutory tolling in this case. See
Ferguson, 321 F.3d at 823.
AEDPA limitations period also may be subject to equitable
tolling, if a petitioner shows that extraordinary
circumstances beyond the petitioner’s control made
timely filing of a federal habeas petition impossible
and the petitioner has acted diligently in pursuing
his rights. Holland v. Florida, 560 U.S. 631, 649
(2010). The petitioner bears the burden of showing that
equitable tolling is appropriate. Miranda v. Castro,
292 F.3d 1063, 1065 (9th Cir. 2002).
has not made any allegation that suggests that equitable
tolling may be appropriate in this instance. Petitioner has
made no showing of extraordinary circumstances or of
diligence and, therefore, has not demonstrated that he is
entitled to equitable tolling.
TO SHOW CAUSE
the allegations and facts of the Petition, Petitioner has not
demonstrated that he is entitled to a later start date.
Therefore, and because the Petition does not demonstrate any
basis for tolling the statute, the Court orders Petitioner to
show cause in writing within fifteen (15) days of the date of
this order why the Petition should not be dismissed as
time-barred. If Petitioner fails to ...