United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY
FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE
April 13, 2016, petitioner Alfonso Munoz Alegria
(“petitioner”), a California prisoner,
constructively filed a Petition for Writ of Habeas Corpus
by a Person in State Custody (the “petition”),
pursuant to 28 U.S.C. § 2254, in the Eastern District of
California. (Dkt. 1.) On June 2, 2017, the matter was
transferred to this Court. (Dkt. 6.) The petition challenges
petitioner's 2013 conviction in the Superior Court of
Riverside County for various crimes.
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).
petitioner has not provided any basis to find otherwise, the
Court presumes that Section 2244(d)(1)(A), which governs the
start date in most habeas cases, applies here. Section
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.” Where, as here, the challenged
judgment was affirmed by the state's highest court, the
period of direct review ends either when the petitioner
failed to file a certiorari petition in the United
States Supreme Court and the 90-day period for doing so has
expired, or when the Supreme Court has ruled on a filed
petition. See Clay v. United States, 537 U.S. 522,
527-32 and nn.3-4, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003);
Wixom v. Washington, 264 F.3d 894, 897 (9th Cir.
California Supreme Court denied petitioner's petition for
review on January 13, 2016. Thus, for the purposes of section
2244(d)(1)(A), petitioner's conviction became final on
April 12, 2016, ninety days after the California Supreme
Court affirmed his conviction. Accordingly, the one-year
limitations period was set to expire on April 12, 2017.
See Patterson, 251 F.3d at 1245-47. Because
petitioner did not initiate the current proceedings until
April 13, 2017, the present action is untimely, absent
statutory or equitable tolling. See 28 U.S.C. §
2244(d)(1); See Bell v. Barnes, 2013 WL 5548621, at
*4 (C.D. Cal. Oct. 4, 2013) (citations omitted) (finding that
petition filed one day late is untimely).
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.” Here, petitioner admits he has never filed
a state habeas petition, an admission that California court
records confirm. Accordingly, he is not entitled to any
statutory tolling and the petition is untimely unless he is
entitled to almost one year of equitable tolling.
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).
petitioner has demonstrated neither that any extraordinary
circumstances prevented him from filing a timely petition nor
that he diligently pursued his right to file. Accordingly,
petitioner has not shown that he is entitled to equitable
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 ...