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Lee v. J. Soto

United States District Court, C.D. California

August 2, 2016

EARL A. LEE, Petitioner,
v.
J. SOTO, Warden, Respondent.

          ORDER TO SHOW

          ALICIA G. ROSENBERG UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         The 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.

         I. PROCEDURAL BACKGROUND

         A Los 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.).

         On July 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.

         Five 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.

         II. STATUTE OF LIMITATIONS

         The 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).

         The 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).

         A. The Date on Which Conviction Became Final - § 2244(d)(1)(A)

         Petitioner's 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 years.

         1. Statutory Tolling

         The 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 ...


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