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Allen v. Koenig

United States District Court, C.D. California

October 17, 2019

Everett O'Neal Allen
A. Koenig, Warden

          Present: The Honorable Autumn D. Spaeth, United States Magistrate Judge.


         Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE


         Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) filed by Everett O'Neal Allen (“Petitioner”), a California state prisoner. [Dkt. No. 1]. The Court's review of the Petition, the Court's own records, and public records reveals that the Petition appears to be untimely and that at least one of Petitioner's grounds for relief is unexhausted.[1] For the reasons discussed below, Petitioner is ORDERED TO SHOW CAUSE in writing by November 14, 2019 why: (1) the instant Petition should not be dismissed with prejudice because it is time-barred; and (2) whether Petitioner's third ground for relief is unexhausted.


         Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”


         A. The Petition is Facially Untimely

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year limitation period for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1); see also Wall v. Kholi, 562 U.S. 545, 550 (2011); Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). The limitation period begins to “run from the latest of” four specified dates, including “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 period of direct review for the purposes of AEDPA's limitation period “includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court.” Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999); see Sup. Ct. R. 13 (allowing a petition for writ of certiorari seeking review of a judgment of a state court of last resort to be filed within ninety days after the entry of the judgment).

         Here, the Petition is facially untimely. Petitioner alleges he was convicted on March 6, 2015 and sentenced on April 8, 2015. [Dkt. No.1, pp. 51-52]. Petitioner then filed a direct appeal in the California state courts and the California Supreme Court eventually denied Petitioner's petition for review on June 13, 2018. See California Appellate Courts Case Information, Therefore, his conviction became final ninety days later on September 11, 2018, and the limitations period expired one year later on September 11, 2019. Since the instant Petition was not constructively filed until September 18, 2019, it appears to be untimely by seven days.

         B. 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 for the statute of limitations. First, Petitioner 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). Second, his claims are not 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 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner has been long aware of the underlying factual predicates of his four grounds for relief. See [Dkt. No. 1]; 28 U.S.C. § 2244(d)(1)(D); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (noting that the limitation period under § 2244(d)(1)(D) begins running when petitioner knew of facts underlying the claims, not when he realized their “legal significance”). Petitioner here is thus not entitled to a later trigger date under 28 U.S.C. § 2244(d)(1).

         C. The Petition Does Not Entitle Petitioner To Statutory Tolling

         In certain cases, a habeas petition filed after the statute of limitations can be found timely with statutory tolling. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). AEDPA provides for statutory tolling while an appeal is pending before a higher state court as well as during the reasonable time between a state court's judgment on direct review and the filing of an application for post-conviction review. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-21 (2002); see, e.g., Velasquez v. Kirland, 639 F.3d 964, 968 (9th Cir. 2011) (holding that an 81-day delay was “far longer than the Supreme court's thirty-to-sixty-day benchmark for ...

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