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Bryant v. Montgomery

United States District Court, C.D. California

October 25, 2019

Joe Larry Bryant
v.
Warren L. Montgomery

          Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: TIMELINESS

         BACKGROUND

         On October 8, 2019, Petitioner, a California state prisoner proceeding pro se, filed an unsigned Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. No. 1.) According to the unsigned Petition, Petitioner is challenging a May 2003 conviction for assault with a deadly weapon and, inter alia, robbery. (Petition at 2.) Petitioner was sentenced to 28 years in state prison. (Id.)

         Petitioner states that he did not appeal his 2003 conviction and sentence because he did not learn until recently that his sentence was unlawful. (Petition at 3.) However, in the last year or two, Petitioner filed several state habeas petitions. (See Petition at 3-4.) On September 11, 2019, the California Supreme Court denied his last state habeas petition as untimely. (See Petition at 4-5, 12)[1]; Bryant (Joe Larry) on H.C., No. S256223, Docket (Register of Actions), available at https://appellatecases.courtinfo.ca.gov (last visited Oct. 11, 2019). Shortly thereafter, on October 1, 2019, Petitioner delivered the instant Petition to prison authorities for mailing.

         APPLICABLE LAW

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires the Court to dismiss a petition without ordering a responsive pleading where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Here, it appears from the face of the Petition that the action is untimely and must be dismissed with prejudice pursuant to Habeas Rule 4.

         As the Court previously informed Petitioner, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs this action, establishes a one-year statute of limitations for state prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The one-year limitations period is subject to a statutory tolling provision, which suspends it for the time during which a “properly-filed” application for post-conviction or other collateral review is “pending” in state court. 28 U.S.C. § 2244(d)(2); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Additionally, in certain “extraordinary circumstances” beyond a prisoner's control, equitable tolling may be available to toll the one-year limitations period. See Holland v. Florida, 560 U.S. 631, 645, 649 (2010).

         The Section 2244(d)(1) limitations period is triggered and begins to run from the latest of:

(A) the date on which the underlying judgment became final through either the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which any impediment to the filing of a federal petition created by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable constitutional right was first recognized by the United States Supreme Court; or (D) the date on which the factual predicate underlying a claim could have been discovered through the exercise of due diligence.

28 U.S.C. ยง ...


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