Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Urias v. Secretary of California Department of Corrections

United States District Court, C.D. California, Western Division

November 15, 2017

MICHAEL URIAS, Petitioner,
v.
SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER TO SHOW CAUSE

          DOUGLAS F. MCCORMICK, UNITED STATES MAGISTRATE JUDGE

         On 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.

         For the 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.

         A. State Court Proceedings

         According 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, http://appellatecases.courtinfo.ca.gov (“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 at 2.[1]

         On 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.

         On July 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.

         B. Timeliness of the Petition

         1. The Petition Is Facially Untimely

         Under 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. § 2244(d)(1)(A).

         The 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.

         2. The Petition Does Not Entitle Petitioner to Any Later Trigger Date

         From 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. § 2244(d)(1).

         3. The Petition Does Not Suggest Any Entitlement to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.