United States District Court, C.D. California
Present: The Honorable Autumn D. Spaeth, United States
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER TO SHOW CAUSE
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. 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.
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
THE PETITION APPEARS TO BE UNTIMELY
The Petition is Facially Untimely
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).
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, http://appellatecases.courtinfo.ca.gov.
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.
The Petition Does Not Entitle Petitioner to Any Later
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).
The Petition Does Not Entitle Petitioner To Statutory
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 ...