United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY PETITITION SHOULD NOT BE
DISMISSED AND DENYING REQUEST FOR APPOINTMENT OF
ALEXANDER F. MACKINNON UNITED STATES MAGISTRATE JUDGE
filed this petition for writ of habeas corpus on October 19,
2019.From the face of the petition, it appears
to be barred by the one-year period of limitation set forth
in the AEDPA. See 28 U.S.C. § 2244(d)(1);
see also Day v. McDonough, 547 U.S. 198, 209 (2006)
(district court may sua sponte consider the
timeliness of a state prisoner's habeas corpus petition).
Statute of Limitation
prisoners have a one-year statutory period to file a federal
application for writ of habeas corpus. 28 U.S.C. §
2244(d)(1). This one-year period commences on the latest of
four dates designated by statute:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
the statute of limitation begins to run on the date a
petitioner's conviction became final. 28 U.S.C.
2244(d)(1)(A). Here, Petitioner was convicted on January 18,
2011 and sentenced on July 11, 2011. (ECF No. 1 at 1.) The
California Court of Appeal affirmed his conviction on January
11, 2013 and, on April 10, 2013, the California Supreme Court
denied review. (ECF No. 1 at 3.) Petitioner's conviction
became final ninety days later - that is, on July 9, 2013
-when the time for filing a petition for a writ of certiorari
in the United States Supreme Court elapsed. See Brown v.
Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999).
Consequently, absent tolling, the one-year limitation period
expired one year later on July 9, 2014. Patterson v.
Stewart, 251 F.3d 1243, 1245-1246 (9th Cir. 2001).
does not allege, and nothing suggests, that a state-created
impediment prevented him from filing a petition raising his
claim nor does his claim rely upon a factual predicate that
could not have been discovered earlier with the exercise of
due diligence. Thus, neither 28 U.S.C. § 2244(d)(1)(B)
nor 28 U.S.C. § 2244(d)(1)(C) apply. However, in light
of his reliance on the Supreme Court's decision in
Descamps v. United States, 570 U.S. 254 (2013), it
is possible that Petitioner contends he is entitled to a
later start date under 28 U.S.C. § 2244(d)(1)(C).
(See ECF No. 1 at 4, 13-18.)
Descamps, the Supreme Court considered when and how
a prior state conviction can trigger a harsher sentence under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 922(e), and held that “sentencing courts may not
apply the modified categorical approach” to determine
whether the prior conviction qualifies as a predicate offense
under the ACCA when the prior crime “has a single,
indivisible set of elements.” Descamps, 570
U.S. at 258. Even assuming Descamps applies to
Petitioner,  it does not have any effect on the date
the statute of limitation began to run.
begin with, Descamps involves statutory
interpretation; it did not establish a new rule of
constitutional law. See Ezell v. U.S., 778 F.3d 762,
766 (9th Cir. 2015) (“[E]ven if the Supreme Court did
announce a new rule in Descamps, that rule is not
constitutional.”); Jones v. McGrew, 2014 WL
2002245, *5 (C.D. Cal. May 15, 2014) (Descamps did
not announce a new rule of constitutional law). Further, even
assuming arguendo that Descamps announced a
newly recognized constitutional right, that right has not
been made “retroactively applicable to cases on
collateral review.” See Brock v. Davis, 2015
WL 11070281, at *4 (C.D. Cal. Aug. 21, 2015) (citing cases),
report and recommendation adopted, 2016 WL 3436371
(C.D. Cal. June 15, 2016). As a result, Descamps
does not entitle Petitioner to a later starting date under
the AEDPA. See Corte Deon Banks v. Sherman, 2019 WL
4749903, at *3 (C.D. Cal. Sept. 30, 2019) (reliance on
Descamps did not entitle petitioner to a delayed accrual date
under 28 U.S.C. § 2244(d)(1)(C) because Descamps is not
a new rule of constitutional law); Depina v. Muniz,
2016 WL 8735719, at *2 (C.D. Cal. Nov. 14, 2016) (same),
report and recommendation adopted, 2016 WL 8738145
(C.D. Cal. Dec. 16, 2016).
even if Descamps could trigger a new start date
under § 2244(d)(1)(C), it would not help Petitioner.
Descamps was decided on June 20, 2013 - prior to the
date on which Petitioner's conviction became final (July
9, 2013). Thus, it does not result in a later starting ...