United States District Court, C.D. California
ORDER DISMISSING PETITION AS UNTIMELY
GARY KLAUSNER UNITED STATES DISTRICT JUDGE
Colin Oliver (“Petitioner”) filed a Petition for
Writ of Habeas Corpus by a Person in State Custody pursuant
to 28 U.S.C. § 2254 (“Petition”). (Dkt.
The Court ordered Petitioner to show cause, on or before
September 13, 2019, why the Petition should not be dismissed
as untimely. Because Petitioner failed to respond, and
because the record shows that the Petition is untimely, the
Petition is hereby dismissed.
following facts are taken from the Petition, from the
Court's own records, or from public records; where
necessary, the Court takes judicial notice of the latter.
See Fed.R.Evid. 201(b)(2) (“The court may
judicially notice a fact that is not subject to reasonable
dispute because it … can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.”); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980) (“[A] court may take
judicial notice of its own records in other cases, as well as
the records of an inferior court in other
2016, a Riverside County jury convicted Petitioner of nine
sex offenses against his two minor daughters, R. and C. (Dkt.
1 at 13-23 [opinion]); see also People v. Oliver,
No. E066861, 2018 Cal.App. Unpub. LEXIS 239 (Jan. 10, 2018).
Petitioner pursued a direct appeal challenging his
convictions on count 8 (committing a forcible lewd act on C.
when she was under age 14) and count 9 (attempting to use C.
for a sexual act for commercial purposes when C. was under
age 18). (Dkt. 1 at 14-15.)
January 10, 2018, the California Court of Appeal affirmed his
convictions. (Id. at 13.) The court reasoned that
C.'s testimony that Petitioner asked her to take
“nude” pictures of herself to sell online was
substantial evidence supporting his conviction on count 9.
(Id. at 16-19.) The court also determined that the
trial court did not err by instructing the jury to continue
deliberating on count 8 after the jury returned inconsistent
verdicts (i.e., finding Petitioner “guilty” of a
forcible lewd act and “not guilty” of the
lesser-included crime of a nonforcible lewd act).
(Id. at 19-23.)
did not file a petition for review in the California Supreme
Court. On March 17, 2019, Petitioner constructively filed a
habeas petition in California Supreme Court case no. S254785.
(Dkt. 1 at 7-12 [signature date].) That petition was denied on
June 19, 2019. Petitioner does not describe, and the online
records of the California Supreme Court and California Courts
of Appeal do not reveal, any other state court filings by
states that any delay in filing his federal Petition was
“caused by miscommunication and
misrepresentation” by his appellate attorney,
“which led to delay for appeal to California Supreme
Court.” (Id. at 6.)
courts may raise untimeliness sua sponte when
untimeliness is obvious on the face of the petition, and may
summarily dismiss a habeas petition as untimely as long as
the Court first provides the petitioner with notice and an
opportunity to respond. Wentzell v. Neven, 674 F.3d
1124, 1126 (9th Cir. 2012); Herbst v. Cook, 260 F.3d
1039, 1042-43 (9th Cir. 2001).
action is subject to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which contains the
following statute of limitations:
(d) (1) 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.
The limitation period shall run from the latest of--
(A) the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for ...