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Wanzo v. Pfeiffer

United States District Court, C.D. California

July 22, 2019

Bruce Wanzo, Jr.
v.
Christian Pfeiffer

          Present: The Honorable Sheri Pym, United States Magistrate Judge

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed as Untimely

         On July 2, 2019, petitioner Bruce Wanzo, Jr. filed a petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (“Petition”), seeking to challenge convictions he incurred in 1990. The court has reviewed the Petition and, for the reasons discussed below, finds that the Petition appears to be barred by the one-year statute of limitations set forth in the Antiterrorrism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1). The court will not make a final determination regarding whether the Petition should be dismissed, however, without giving petitioner an opportunity to address the timeliness of his Petition.

         Petitioner also acknowledges his Petition is unexhausted, but claims his failure to exhaust is excused. A habeas petitioner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Although petitioner may also be barred from seeking federal habeas relief by a failure to exhaust, the court need not consider this issue further at this time because the Petition appears to be plainly, and extremely, untimely.

         Accordingly, the court hereby directs petitioner to show cause why the Petition should not be dismissed as barred by AEDPA's one-year statute of limitations. Petitioner must respond to the Order to Show Cause in writing by no later than August 19, 2019. The court further directs petitioner to review the information that follows, which provides additional explanation as to why the Petition appears to be subject to dismissal and may assist petitioner in determining how to respond.

         AEDPA's One-Year Statute of Limitations

         AEDPA mandates that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1); see also Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003). After the one-year limitation period expires, the prisoner's “ability to challenge the lawfulness of [his] incarceration is permanently foreclosed.” Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002).

         To assess whether a petition is timely filed under AEDPA, it is essential to determine when AEDPA's limitation period starts and ends. By statute, AEDPA's limitation period begins to run from the latest of four possible events:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Ordinarily, the starting date of the limitation period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

         AEDPA may also allow for statutory tolling or equitable tolling. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). But “a court must first determine whether a petition was untimely under the statute itself before it considers ...


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