United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed As Untimely and/or Due to Failure to
August 31, 2017, Victor Tovar (“Petitioner”)
constructively filed a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254 (the “Petition”). ECF
Docket No. (“Dkt.”) 1. For the reasons set forth
below, the Petition appears subject to dismissal. The Court
will not make a final determination regarding whether the
federal Petition should be dismissed, however, without giving
Petitioner an opportunity to address these issues.
November 12, 2010, following a jury trial in California
Superior Court for the County of Santa Barbara, Petitioner
was convicted of two counts of kidnapping to commit robbery
in violation of Section 209(b)(1) of the California Penal
Code, and one count of second degree robbery in violation of
Section 211 of the California Penal Code. See Pet.
at 1; see also People v. Tovar, No. B228953, 2012 WL
1201068, at *1 (Cal.Ct.App. Apr. 10, 2012). Petitioner was
sentenced to two-concurrent life terms for kidnapping to
commit robbery, plus a consecutive three-year term for
robbery. Tovar, 2012 WL 1201068, at *1.
filed a direct appeal on November 22, 2010 in the California
Court of Appeal. See California Courts, Appellate
Courts Case Information, Docket,
no=B228953 (last updated Nov. 15, 2017, 12:45 PM). On April
10, 2012, the California Court of Appeal stayed the
three-year consecutive sentence on robbery, but otherwise
affirmed Petitioner's conviction. Id.;
see Pet. at 2; Tovar, 2012 WL 1201068, at
did not file a petition for review in the California Supreme
Court. On June 12, 2012, Petitioner wrote a letter to the
California Supreme Court “inquir[ing]” about his
case. Pet. at 21, 31. On June 25, 2012, the California
Supreme Court replied to Petitioner's letter informing
Petitioner that after the California Court of Appeal affirmed
his conviction on April 10, 2012, the California Supreme
Court “lost jurisdiction to act on any petition for
review on June 9, 2012.”Id. at 31.
24, 2017, Petitioner filed a petition for relief from default
in the California Supreme Court. Pet. at 3. On May 24, 2017,
the California Supreme Court denied the petition and informed
Petitioner that the California Supreme Court “lost
jurisdiction to act on any petition for review June 11,
2012.” Id. at 3, 47.
August 31, 2017, Petitioner constructively filed the instant
Petition. Dkt. 1.
THE PETITION IS UNTIMELY AND IS SUBJECT TO
THE PETITION WAS FILED AFTER AEDPA'S ONE-YEAR ...