United States District Court, C.D. California
EARL A. LEE, Petitioner,
J. SOTO, Warden, Respondent.
ORDER TO SHOW
G. ROSENBERG UNITED STATES MAGISTRATE JUDGE
has filed a Petition for Habeas Corpus pursuant to 28 U.S.C.
§ 2254. For the reasons discussed below, it appears that
the one-year statute of limitations has expired.
court therefore orders Petitioner to show cause on or before
August 22, 2016 why the court
should not recommend dismissal of the petition with prejudice
based on expiration of the one-year statute of limitations.
Angeles County Superior Court jury convicted Petitioner of
two counts of special-circumstance murder and other crimes
and enhancements. He was sentenced to two consecutive prison
terms, each consisting of life without possibility of parole
plus 25 years. See People v. Lee, No. B213692, 2010
WL 2636483 (Cal.App. 2d Dist.).
2, 2010, the California Court of Appeal affirmed.
Id. On October 20, 2010, the California Supreme
Court denied review. California Appellate Courts Online
Docket in Case No. S184433.
and a half years passed. On April 1, 2016, Petitioner filed a
habeas petition in the California Supreme Court, which denied
relief on May 18, 2016. California Appellate Courts Online
Docket in Case No. S233435.
STATUTE OF LIMITATIONS
petition was filed after enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Therefore, the court applies the AEDPA in reviewing the
petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
AEDPA contains a one-year statute of limitations for a
petition for writ of habeas corpus filed in federal court by
a person in custody pursuant to a judgment of a state court.
28 U.S.C. § 2244(d)(1). The one-year period starts
running on the latest of either the date when a conviction
becomes final under 28 U.S.C. § 2244(d)(1)(A) or on a
date set in § 2244(d)(1)(B)-(D).
The Date on Which Conviction Became Final - §
conviction became final on January 18, 2011, 90 days after
the California Supreme Court denied review on October 20,
2010. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th
Cir. 1999). The statute of limitations expired on January 19,
2012. Absent tolling, the petition is late by over four
statute of limitations is tolled during the time “a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2).
Petitioner does not appear to have had any state habeas
challenges pending during the limitations period. He cannot
benefit from tolling for his 2016 California Supreme Court
petition, for he did not file ...