United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY
FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE
7, 2019, petitioner Roderick Lynn Wade
(“Petitioner”), a California prisoner,
constructively filed a Petition for Writ of Habeas Corpus
by a Person in State Custody (the “Petition”),
pursuant to 28 U.S.C. § 2254. (Docket No. 1.) The
Petition appears to challenge Petitioner's 2016
convictions and sentences entered in the Superior Court of
Los Angeles County.
PERIOD FOR FEDERAL HABEAS PETITIONS
present proceedings were initiated after the April 24, 1996,
effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), ub. L. No. 104-132, 110
Stat. 1214 (1996). Accordingly, AEDPA's timeliness
provisions apply, including a one-year limitations period
which is subject to both statutory and equitable tolling.
See 28 U.S.C. § 2244(d)(1). For those prisoners
whose convictions became final post-AEDPA, the one-year
period starts running from the latest of four alternative
dates set forth in 28 U.S.C. § 2244(d)(1)(A)-(D).
See, e.g., Patterson v. Stewart, 251 F.3d
1243, 1245-47 (9th Cir. 2001).
2244(d)(1)(A) provides that the one-year limitations period
“shall run from the latest of . . . the date on which
the [petitioner's conviction] became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” If a petitioner's conviction
is affirmed by an intermediate appellate court and he does
not appeal that decision to the state's highest court,
his conviction becomes final for the purposes of section
2244(d)(1)(A) when the period for seeking review from the
state's highest court expires. Wixom v.
Washington, 264 F.3d 894, 897 (9th Cir. 2001). In
California, a petitioner's period for seeking review from
the California Supreme Court expires forty days after the
Court of Appeal decision is filed. See Cal. R. Ct.
8.264(b)(1) (“[A] Court of Appeal decision . . . is
final in that court 30 days after filing.”); Cal. R.
Ct. 8.500(e)(1) (“A petition for review must be . . .
filed within 10 days after the Court of Appeal decision is
final in that court.”).
California Court of Appeal decision affirming
Petitioner's conviction was filed on April 3,
2017. Petitioner never filed a petition for
direct review of his conviction in the California Supreme
Court. (Petition, No. 4.) Thus, for the purposes of section
2244(d)(1)(A), petitioner's conviction became final on
May 13, 2017, forty days after petitioner's conviction
was affirmed by the California Court of Appeal. See
Wixom, 264 F.3d at 897; Cal. R. Ct. 8.264(b)(1),
8.500(e)(1). Accordingly, the one-year limitations period was
set to expire on May 13, 2018. See Patterson, 251
F.3d at 1245-47. Because petitioner did not initiate the
current proceedings until July 7, 2019, the present action is
untimely, absent statutory or equitable tolling. See
28 U.S.C. § 2244(d)(1); Fed. R. Civ. Proc. 6(a).
28 U.S.C. § 2244(d)(2) provides that “[t]he time
during which a properly filed application for state
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.” However, a petitioner is not entitled to
statutory tolling where he initiates state habeas proceedings
after the expiration of the federal one-year limitations
period. See Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003) (“[S]ection 2244(d) does not permit the
reinitiation of the limitations period that has ended before
the state petition was filed.” (citations omitted)).
noted above, the one-year limitations period within which
Petitioner could challenge his conviction in federal court
expired on May 13, 2018. Petitioner alleges that he filed a
petition for writ of habeas corpus with the Superior Court of
Los Angeles County on June 15, 2018. (Petition, No. 6(a)(3).)
California Court of Appeal records indicate that the earliest
Petitioner filed any habeas petition in the Court of Appeal
or California Supreme Court was November 1, 2018. However,
even using the June 15, 2018, filing date, Petitioner does
not appear entitled to any statutory tolling because
“section 2244(d) does not permit the reinitiation of
the limitations period.”
AEDPA limitations period also may be subject to equitable
tolling, if the petitioner shows that extraordinary
circumstances beyond the petitioner's control made timely
filing of a federal habeas petition impossible and the
petitioner has acted diligently in pursuing his rights.
Holland v. Florida, 560 U.S. 631, 649 (2010). The
petitioner bears the burden of showing that equitable tolling
is appropriate. Miranda v. Castro, 292 F.3d 1063,
1065 (9th Cir. 2002).
Petitioner has demonstrated neither that any extraordinary
circumstances prevented him from filing a timely petition nor
that he diligently pursued his right to file. Accordingly,
Petitioner has not shown that he is entitled to equitable
ORDER TO SHOW CAUSE
the allegations and facts of the Petition, Petitioner has not
demonstrated that he is entitled to a later start date of the
limitations period. Therefore, and because the Petition does
not demonstrate any basis for statutory or equitable tolling,
or for setting aside the one-year limitation, the Court
orders Petitioner to show cause in writing within thirty (30)
days of the date of this order why the Petition should not be
dismissed as time-barred. If Petitioner fails ...