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McGinnis v. Madden

United States District Court, C.D. California

August 2, 2016

Raymond McGinnis
v.
Raymond Madden, Warden

          PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

         ORDER 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

         PROCEEDINGS: (IN CHAMBERS)

         On June 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.[1] (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).

         On July 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.

         The Petition Is Untimely

         The 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 following dates:

(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.

         Under § 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 http://appellatecases.courtinfo.ca.gov; Prior Petition, Lodgment 12).[2] 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, ...


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