United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner without counsel seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He has filed a
habeas corpus petition (ECF No. 1) which, for the reasons
identified below, appears to be untimely. Petitioner will be
afforded an opportunity to show cause as to why this petition
should not be recommended for dismissal with prejudice on the
ground that it is untimely. Petitioner will also be directed
to submit either the filing fee or an application to proceed
in forma pauperis within thirty days of this order's
court must dismiss a habeas petition or portion thereof if
the prisoner raises claims that are legally “frivolous
or malicious” or fail to state a basis on which habeas
relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4
Governing Section 2254 Cases.
conviction underlying this petition occurred on June 4, 2003.
ECF No. 1 at 1. Petitioner's direct appeal was completed
when the California Supreme Court denied his petition for
review on October 18, 2004. Id. at 2-3.
filed a habeas petition with the Sacramento County Superior
Court on January 11, 2006. Id. at 3. This petition
was denied on May 1, 2006. Id. The court of appeals
denied the petition on May 18, 2006. Id. at 4. Then,
the California Supreme Court denied the petition on June 13,
2007. Id. at 4-5.
current petition, petitioner argues that the state lacks the
legal authority to use a “prohibited” conviction
to enhance a subsequent sentence. Id. at 5.
Petitioner notes that he pled guilty to robbery in 1996 as
part of a plea bargain. Id. at 6. He now argues that
this plea bargain was illegal. Id. Petitioner states
that he is not challenging the 1996 conviction itself, but
only the application of that conviction to enhance his later
sentence in 2003. Id. at 7. He claims the use of
this illegal conviction violates his due process rights.
apparent from the face of the petition that it is untimely. A
federal habeas petition must be filed within one year of: (1)
the date the state court judgment became final, either by
conclusion of direct review or the expiration of time to seek
such review; (2) the date on which an impediment to filing
created by state action is removed (if the applicant was
prevented from filing by that action); (3) the date on which
a constitutional right is newly recognized by the Supreme
Court and made retroactive on collateral review; or (4) the
date on which the factual predicate of the claim could have
been recognized through the exercise of due diligence.
See 28 U.S.C. § 2244(d). The petition indicates
that petitioner's conviction became final at the
conclusion of direct review on October 18, 2004 - more than a
decade ago. This petition was not filed until April 26, 2017.
Petitioner states that his petition should be construed as
timely because he is challenging an illegal, unauthorized
sentence. There is no authority to support this proposition.
cognizable federal habeas petitions allege that the
petitioner's custody violates the Constitution or other
federal law. The limitations period would have no meaning if
petitioners were able to circumvent it simply by claiming
that they were subject to an illegal sentence.
court will afford petitioner an opportunity to show cause and
raise any other arguments he might have as to why his
petition is timely before it recommends dismissal with