United States District Court, C.D. California
Present: The Honorable Kenly Kiya Kato, United States
(In Chambers) Order to Show Cause Why This Action Should Not
Be Dismissed As Untimely [Dkt. 1]
Fernando Benitez (“Petitioner”) has filed a
pro se Petition for Writ of Habeas Corpus
(“Petition”) by a Person in State Custody
pursuant to 28 U.S.C. § 2254. Petitioner challenges his
conviction and sentence based on the following claim:
“Trial Court imposed an illegal enhancement according
to newly decided case law by the California Supreme
Court.”See ECF Docket
(“Dkt.”) No. 1, Pet. at 5. However, the Petition
appears to be untimely on its face. The Court thus orders
Petitioner to show cause why this action should not be
dismissed as untimely.
February 10, 2010, in Los Angeles County Superior Court,
Petitioner was convicted of first degree and second degree
robbery in violation of Section 211 of the California Penal
Code, with a gang enhancement under Section 186.22(b)(1)(c)
of the California Penal Code and a firearm enhancement under
Section 12022.53(B) of the California Penal Code.
See Pet. at 1. Petitioner was sentenced to a term of
seventeen years and four months. Id.
filed a state habeas petition in the Los Angeles Superior
Court, which was denied on August 21, 2015. Id. at
September 17, 2015, Petitioner filed a state habeas petition
in the California Court of Appeal. See California
Courts, Appellate Courts Case Information, Docket (April 28,
2017, 3:20 PM)
& div=8&doc-no=B266872. On October 14, 2015, the
California Court of Appeal denied the petition. Id.;
Pet. at 2, 3.
January 25, 2016, Petitioner filed a state habeas petition in
the California Supreme Court See California Courts,
Appellate Courts Case Information, Docket (April 28, 2017,
&doc-no=S232057. On April 13, 2016, the California
Supreme Court denied the petition. Id.
April 2, 2017, Petitioner constructively filed the instant
Petition. Pet. at 7.
THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR LIMITATIONS
filed the Petition after April 24, 1996, the effective date
of AEDPA. Pet. at 7. Therefore, the requirements for habeas
relief set forth in AEDPA apply. Soto v. Ryan, 760
F.3d 947, 956-57 (9th Cir. 2014). AEDPA “sets a
one-year limitations period in which a state prisoner must
file a federal habeas corpus petition.” Thompson v.
Lea, 681 F.3d 1093, 1093 (9th Cir. 2012) (citation
omitted). Ordinarily, the limitations period runs from the
date on which the prisoner's judgment of conviction
“became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1) (“Section 2244(d)(1)”).
Under the California Rule of Court 8.308(a), the time for
appealing a conviction and sentence expires sixty days
“after the rendition of the judgment or the making of
the order being appealed.” Cal. R. Ct. 8.308(a);
Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948,
127 L.Ed.2d 236 (1994).
there is no indication Petitioner sought direct review of his
conviction. Accordingly, Petitioner's conviction became
final on April 11, 2010, i.e., sixty days after the
date of Petitioner's conviction. See Cal. R. Ct.
8.308(a); Caspari, 510 U.S. at 390. AEDPA's
one-year limitations period commenced the next day, April 12,
2010, and expired on April 12, 2011. See 28 U.S.C.
§ 2244(d)(1). However, Petitioner constructively filed
the instant Petition on April 2, 2017. Pet. at 7. Therefore,
in the ...