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Henderson v. Ascuncion

United States District Court, C.D. California

March 2, 2017

ANTHONY RAY HENDERSON, JR., Petitioner,
v.
DEBBIE ASUNCION, Warden, Respondent.

          ORDER TO SHOW CAUSE

          ALICIA G. ROSENBERG United States Magistrate Judge

         Petitioner, a state inmate, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) 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 April 3 2017 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

         On July 5, 2006, Petitioner pleaded no contest in Los Angeles County Superior Court case number SA055687 to various crimes, including robbery and assault with a deadly weapon. (Petition at 2.) He was sentenced to 22 years in state prison. (Exh. A to Petition.) Petitioner did not appeal.[1]

         Over eight years passed. On November 5, 2014, Petitioner filed a habeas petition in the trial court, contending that his plea bargain was invalid. On November 12, 2014, the Superior Court denied the petition. On December 9, 2014, Petitioner filed another habeas petition in the trial court. On December 16, 2014, the court again denied relief. (Petition at 3.)

         On June 6, 2016, the Superior Court denied a petition to modify the sentence pursuant to Cal. Penal Code § 1170(d). (Exh. C to Petition.)

         On June 20, 2016, Petitioner filed a state habeas petition in the California Court of Appeal, which denied relief on July 7, 2016. (Exh. D to Petition.) The Court takes judicial notice of records in the state's Appellate Courts Case Information database indicating that Petitioner filed a state habeas petition in the California Supreme Court on August 15, 2016. The Court denied relief on October 12, 2016 with a citation to In re Robbins, 18 Cal.4th 770, 780 (1998). In re Henderson, 2016 Cal. LEXIS 8645 (Oct. 12, 2016).

         On February 13, 2017, Petitioner constructively filed the Petition in this court.

         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 ...


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