United States District Court, C.D. California
PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE
VACATING PRIOR ORDER TO SHOW CAUSE [DKT. NO. 4] AND ORDERING
PETITIONER TO SHOW CAUSE WHY THE MAGISTRATE JUDGE SHOULD NOT
RECOMMEND THAT THIS ACTION BE DISMISSED AS UNTIMELY FILED
CIVIL MINUTES - GENERAL
SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE
8, 2016, Raymond McGinnis (“Petitioner”), a
California state prisoner proceeding pro se, filed a
Petition for Writ of Habeas Corpus (“Petition”)
pursuant to 28 U.S.C. § 2254. (Dkt. No. 1). Petitioner
challenges his 1999 conviction and sentence for murder,
assault with a semiautomatic firearm, and two counts of
robbery in violation of Title: Raymond McGinnis v.
Raymond Madden, Warden California Penal Code sections
187, 211, and 245. (Petition at 2). On July 8, 2016, the
Court issued an Order To Show Cause Why The Magistrate Judge
Should Not Recommend That This Action Be Dismissed As
Successive in light of Raymond McGinnis v. Raymond
Madden, C.D. Cal. Case No. CV 15-4754 DOC (SS) (the
“Prior Petition”). (“OSC, ” Dkt. No.
4). The Court also observed that, in adjudicating the Prior
Petition, the Court had determined that a challenge to the
1999 conviction would be untimely. (Id. at 3 n.3).
28, 2016, Petitioner responded to the OSC. (“Response,
” Dkt. No. 5). Based upon the Response, the OSC, which
focused primarily on whether the Petition was successive, is
VACATED. However, Petitioner’s Response does not
address whether the Petition is timely. The Court will
therefore provide Petitioner with a further opportunity to
address that issue.
Petition Is Untimely
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to the instant Petition because
Petitioner filed it after AEDPA’s effective date of
April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336
(1997). AEDPA altered federal habeas litigation by imposing a
specific time limit on the filing of federal habeas
petitions. See Rhines v. Weber, 544 U.S. 269, 274
(2005). Under 28 U.S.C. § 2244(d)(1), as amended, state
prisoners have only one year in which to file their federal
habeas petitions. Specifically, state prisoners must file
their habeas petitions within one year of the latest of the
(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.
28 U.S.C. § 2244(d)(1)(A)-(D). Here, §
2244(d)(1)(A) provides the applicable limitations period.
§ 2244(d)(1)(A), “a federal petition for writ of
habeas corpus . . . must be filed within one year after the
state court judgment becomes final by the conclusion of
direct review or the expiration of the time to seek direct
review.” Porter v. Ollison, 620 F.3d 952, 958
(9th Cir. 2010); 28 U.S.C. § 2244(d)(1)(A). The
California Supreme Court denied Petitioner’s petition
for review in his direct appeal on September 12, 2001.
(See California Appellate Courts Case Information
website, Case No. S099000, available at
Petition, Lodgment 12). After the California Supreme Court
denied review, Petitioner had the option of seeking a writ of
certiorari from the United States Supreme Court. 28 U.S.C.
§ 1257. A writ of certiorari must be sought within
ninety days after the California Supreme Court denies review.
28 U.S.C. § 2101(d); United States Supreme Court Rule
13. If a petitioner does not seek certiorari in the Supreme
Court, the direct review process is over at the end of the
ninety-day period. Whalem/Hunt v. Early, 233 F.3d
1146, 1147 (9th Cir. 2000) (en banc); Bowen v. Roe,
188 F.3d 1157, 1159 (9th Cir. 1999). Thus, the statute of
limitations began to run on December 11, ...