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Collier v. Montgomery

United States District Court, C.D. California

October 24, 2019

ADAM LASHAWN COLLIER, Petitioner,
v.
WARRAN L. MONTGOMERY, Warden, Respondent.

          ORDER TO SHOW CAUSE

          ALICIA G. ROSENBERG, UNITED STATES MAGISTRATE JUDGE

         On October 3, 2019, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 2254. For the reasons set forth below, it appears the Petition is untimely and contains fully unexhausted grounds for relief. The court orders Petitioner to show cause, on or before November 25, 2019, why the court should not recommend dismissal of the Petition with prejudice as barred by the statute of limitations.

         I.

         PROCEDURAL BACKGROUND

         Petitioner states that he was convicted of second degree robbery on July 10, 2012 in No. NA092184.[1] (Petition at 2, 4.) The online docket for Los Angeles County Superior Court No. NA092184 indicates Petitioner pled nolo contendere to violations of Cal. Penal Code § 211 in Counts 1 and 3 on July 10, 2012. (See www.lacourt.org/criminalcasessummary for No. NA092184.) Petitioner was sentenced to state prison for 10 years on Count 1 and two years on Count 3 on July 10, 2012. Petitioner states that he did not file an appeal. (Petition at 2-3.)

         Petitioner states that he filed a state habeas petition that was denied by the Superior Court. (Id. at 3-4.) The Superior Court's online docket indicates Petitioner filed the state habeas petition on September 5, 2018 and the court denied it on September 7, 2018. (See www.lacourt.org/criminalcasessummary for No. NA092184.)

         Petitioner states that he filed a state habeas petition that was denied by the California Court of Appeal. Petitioner filed a state habeas petition on October 3, 2018 in No. B292991. (Petition at 4.) The California Court of Appeal summarily denied the petition on October 17, 2018. (See www.appellatecases.courtinfo.ca.gov/search/case/dockets for No. B292991.)

         Petitioner states that he filed a state habeas petition that was denied by the California Supreme Court. Petitioner filed the state habeas petition on December 10, 2018 in No. S253008. (Petition at 4.) The California Supreme Court summarily denied the petition on May 15, 2019. (Id. at 5); In re Collier, 2019 Cal. LEXIS 3292 (May 15, 2019).

         On October 3, 2019, Petitioner constructively filed the instant Petition with this court. (Dkt. No. 1).

         II.

         STATUTE OF LIMITATIONS

         The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) on April 24, 1996. Therefore, the court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

         The AEDPA contains a one-year statute of limitations for a Petition for Writ of Habeas Corpus filed in federal court by a person in custody pursuant to a judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts running on the latest of either the date when a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D). The court must analyze the statute of limitations on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). The burden of demonstrating that the AEDPA's one-year limitation period was sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See Pace v. DiGuglielmo, 544 U.S. 408, 417-18, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

         A. The Date on Which Conviction Became Final - ...


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