United States District Court, C.D. California
Bruce Wanzo, Jr.
Present: The Honorable Sheri Pym, United States Magistrate
(In Chambers) Order to Show Cause Why Petition Should
Not Be Dismissed as Untimely
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.
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.
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.
One-Year Statute of Limitations
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).
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).
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