United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE
DOUGLAS F. MCCORMICK, UNITED STATES MAGISTRATE JUDGE
October 16, 2017, Michael Urias (“Petitioner”)
initiated this action by filing a Petition for Writ of Habeas
Corpus by a Person in State Custody in the United States
District Court for the Eastern District of California.
See Dkt. 1 (“Petition”) at 1. Pursuant
to 28 U.S.C. § 2241(d), the Petition was transferred to
this Court. See Dkt. 3.
reasons discussed below, Petitioner is ORDERED TO SHOW CAUSE
in writing within 28 days of the service of this Order why
the instant petition should not dismissed with prejudice
because it is time barred and/or because the Court lacks
jurisdiction over it.
State Court Proceedings
to the California Court of Appeal website, Petitioner's
challenged conviction occurred in August 1999 in Los Angeles
County Superior Court (No. BA173513). See California
Courts, Appellate Cts. Case Information,
(“Appellate Cts. Case Information”). The state
appellate court affirmed his conviction in February 2001 (No.
B134600). Id. The California Supreme Court denied
review on April 25, 2001 (No. S096224). Id.
Petitioner does not appear to have filed a petition for writ
of certiorari with the United States Supreme Court. Petition
October 3, 2001, Petitioner filed a state petition for writ
of habeas corpus in the California Court of Appeal (No.
B153407). See Appellate Cts. Case Information. That
court denied the petition on October 24, 2001. Id.
Petitioner filed two more state petitions for writs of habeas
corpus in the California Court of Appeal on December 1, 2008
(No. B212379) and on November 8, 2012 (No. B2450001). See
id. None of these three prior state habeas petitions
filed in the California Court of Appeal raised the issue of
the trial court's imposition of the $3, 000 fine at issue
in the instant case. See Petition at 12-13.
6, 2016, the California trial court heard and denied
Petitioner's Request for Consideration Re: Modification
of Sentence, which claimed that “the imposition of a
$3000.00 restitution fine [was] erroneous and improper based
upon an inability to pay.” Id. at 9. On August
2, 2016, Petitioner filed a petition for writ of habeas
corpus on this issue in the California Court of Appeal, and,
in a two-page opinion, the state appellate court denied that
petition on October 17, 2016. See id. at 12-13. On
September 13, 2017, the California Supreme Court summarily
denied Petitioner's further appeal and noted that
“courts will not entertain habeas corpus claims that
are untimely” and those “that could have been,
but were not, raised on appeal.” Id. at 15.
Timeliness of the Petition
The Petition Is Facially Untimely
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a one-year limitation period applies
to a federal petition for writ of habeas corpus filed by a
person in state custody. See 28 U.S.C. §
2244(d)(1). In most cases, the limitation period begins
running from “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. §
California Supreme Court denied Petitioner's petition for
review on April 25, 2001. See Appellate Cts. Case
Information (No. S096224). Petitioner does not appear to have
filed a petition for writ of certiorari in the United States
Supreme Court. See Petition at 2. Therefore, his
conviction became final 90 days later, on July 24, 2001.
See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.
1999). If the Court assumes July 24, 2001, is the date
Petitioner's limitation period began to run, Petitioner
had one year from the date his judgment became final, or
until July 24, 2002, to timely file a habeas corpus petition
in this Court. See Patterson v. Stewart, 251 F.3d
1243, 1247 (9th Cir. 2001). Petitioner did not file the
instant action until October 16, 2017, over 15 years too
late. The Petition is thus facially untimely.
The Petition Does Not Entitle Petitioner to Any Later Trigger
the face of the Petition, it does not appear that Petitioner
has any basis for contending that he is entitled to a later
trigger date under 28 U.S.C. §§ 2244(d)(1)(B), (C),
or (D). He does not assert that he was impeded from filing
his federal petition by unconstitutional state action.
See 28 U.S.C. § 2244(d)(1)(B). Nor are his
claims based on a federal constitutional right that was newly
recognized by the United States Supreme Court and made
retroactively applicable to cases on collateral review.
See id. § 2244(d)(1)(C). Finally, Petitioner
has been long aware of the underlying factual predicate of
his claim-that is, his alleged inability to pay the $3, 000
restitution fine imposed on him by the state trial court in
1999. See Petition at 7, 9, 12-13; 28 U.S.C. §
2244(d)(1)(D); Hasan v. Galaza, 254 F.3d 1150, 1154
n.3 (9th Cir. 2001) (holding that limitation period under
§ 2244(d)(1)(D) begins running when petitioner knew of
facts underlying claims, not when he realized their
“legal significance”). Petitioner is thus not
entitled any later trigger date under 28 U.S.C. §
The Petition Does Not Suggest Any Entitlement to ...