United States District Court, C.D. California
JESUS A. LEYVA, Petitioner,
WILLIAM L. MUNIZ, Respondent.
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY
FREDERICK F. MUMM United States Magistrate Judge
March 7, 2017, petitioner Jesus A. Leyva
("petitioner") constructivelyfiled a Petition
for Writ of Habeas Corpus by a Person in State Custody (the
"petition") pursuant to 28 U.S.C. § 2254.
(Dkt. 1.) The petition challenges petitioner's 2014
conviction in the Superior Court of Los Angeles County for
LIMITATIONS PERIOD FOR FEDERAL HABEAS PETITIONS
present proceedings were initiated after the April 24, 1996,
effective date of the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110
Stat. 1214(1996). Accordingly, AEDPA's timeliness
provisions apply, including a one-year limitations period
which is subject to both statutory and equitable tolling.
See 28 U.S.C. § 2244(d)(1). For those prisoners
whose convictions became final post-AEDPA, the one-year
period starts running from the latest of four alternative
dates set forth in 28 U.S.C. § 2244(d)(1)(A)-(D).
See, e.g., Patterson v. Stewart, 251 F.3d 1243,
1245-47 (9th Cir. 2001).
2244(d)(1)(A) provides that the one-year limitations period
"shall run from the latest of. . . the date on which the
[petitioner's conviction] became final by the conclusion
of direct review or the expiration of the time for seeking
such review." If a petitioner's conviction is
affirmed by an intermediate appellate court and he does not
appeal that decision to the state's highest court, his
conviction becomes final for the purposes of section
2244(d)(1)(A) when the period for seeking review from the
state's highest court expires. Wixom v.
Washington, 264 F.3d 894, 897 (9th Cir. 2001). In
California, a petitioner's period for seeking review from
the California Supreme Court expires forty days after the
Court of Appeal decision is filed. See Cal. R. Ct.
8.264(b)(1) ("[A] Court of Appeal decision ... is final
in that court 30 days after filing."); Cal. R. Ct.
8.500(e)(1) ("A petition for review must be ... filed
within 10 days after the Court of Appeal decision is final in
California Court of Appeal decision affirming
petitioner's conviction was filed on May 27,
2015. While petitioner did have a habeas
petition pending in the California Supreme Court at that
time, as discussed below, petitioner never filed a petition
for direct review of his conviction in the
California Supreme Court. Thus, for the purposes of section
2244(d)(1)(A), petitioner's conviction became final on
July 6, 2015, forty days after petitioner's conviction
was affirmed by the California Court of Appeal. See
Wixom, 264 F.3d at 897; Cal. R. Ct. 8.264(b)(1),
8.500(e)(1). Accordingly, the one-year limitations period was
set to expire on July 6, 2016. See Patterson, 251
F.3d at 1245-47. Because petitioner did not initiate the
current proceedings until March 7, 2017, the present action
is untimely, absent statutory or equitable tolling.
See 28 U.S.C. § 2244(d)(1); Fed. R. Civ. Proc.
28 U.S.C. § 2244(d)(2) provides that "[t]he time
during which a properly filed application for state
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection." The statute of limitations is not tolled
between the date on which a judgment becomes final and the
date on which the petitioner files his first state collateral
challenge because there is no case "pending."
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
However, a state habeas petition filed before a
petitioner's conviction is final may toll limitations
period, effectively delaying the initiation of the
limitations period during the time the petition is pending.
Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001)
noted above, on April 28, 2015, petitioner filed a habeas
petition in the California Supreme Court while his direct
appeal was still pending before the California Court of
Appeal. The California Supreme Court denied the petition on
July 8, 2015, two days after petitioner's conviction
became final for the purposes of section 2244(d)(1)(A).
Petitioner admits that he has not filed any other habeas
petitions in state court since his habeas petition was denied
by the California Supreme Court. California court records
confirm his admission. Accordingly, the one-year limitations
period within which petitioner was permitted to file a
federal habeas petition effectively began on July 8, 2015,
and ended on July 8, 2016, unless it is subject to equitable
AEDPA limitations period also may be subject to equitable
tolling, if the petitioner shows that extraordinary
circumstances beyond the petitioner's control made timely
filing of a federal habeas petition impossible and the
petitioner has acted diligently in pursuing his rights.
Holland v. Florida, 560 U.S. 631, 649 (2010). The
petitioner bears the burden of showing that equitable tolling
is appropriate. Miranda v. Castro, 292 F.3d 1063,
1065 (9th Cir. 2002).
has made no showing of extraordinary circumstances or of
diligence and, therefore, has not demonstrated that equitable
tolling is appropriate in this case.
ORDER TO SHOW CAUSE
the allegations and facts of the petition, petitioner has not
demonstrated that he is entitled to a later start date of the
limitations period. Therefore, and because the petition does
not demonstrate any basis for tolling the statute, or for
setting aside the one-year limitation, the Court orders
petitioner to show cause in writing within thirty (30) days
of the date of this order why the petition should not be
dismissed as time-barred. If petitioner fails to ...