United States District Court, C.D. California
Present: The Honorable Douglas F. McCormick, United States
CIVIL MINUTES - GENERAL
(IN CHAMBERS) Order to Show Cause
November 12, 2019, Micheal Steven King
("Petitioner"), a state prisoner, constructively
filed in this Court a Petition for Writ of Habeas Corpus by a
Person in State Custody under 28 U.S.C. § 2254. See Dkt.
1 ("Petition"). Petitioner is ORDERED TO SHOW CAUSE
in writing within 28 days of the service of this Order why
the Petition should not be dismissed with prejudice as
State Court Proceedings
was convicted of second-degree murder in December 2008.
See Petition at 1. Petitioner did not appeal.
See id. at 32. On June 14, 2019, Petitioner filed a
state habeas petition with the California Supreme Court.
See id.; see also Appellate Courts Case
(search for No. S256345). On September 25, 2019, the Supreme
Court denied the petition with citations to In re
Robbins. 18 Cal.4th 770, 780 (1998) (courts will not
entertain habeas corpus claims that are untimely) and In
re Clark, 5 Cal.4th 750, 767-69 (1993) (courts will not
entertain habeas corpus claims that are successive). See
Timeliness of the Petition
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a one-year limitation period applies to
a federal petition for writ of habeas corpus filed by a
person in state custody. See 28 U.S.C. §
2244(d)(1). In most cases, the limitation period begins
running from “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. §
Petitioner did not appeal, his conviction became final
sometime in February 2009, 60 days following the judgment.
See Cal. R. Ct. 8.308; see also Gonzalez v.
Thaler, 565 U.S. 134, 154 (2012) (“[W]ith respect
to a state prisoner who does not seek review in a State's
highest court, the judgment becomes “final” under
§ 2244(d)(1)(A) when the time for seeking such review
expires.”). Petitioner had one year from February 2009
to file a timely federal habeas petition. See Patterson
v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001).
Petitioner did not file the instant action until November
2019, nearly ten years too late. The Petition is thus
the face of the Petition, Petitioner appears to have little
if any basis for contending that he is entitled to a later
trigger date under 28 U.S.C. §§ 2244(d)(1)(B), (C),
or (D). He 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). 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 id. § 2244(d)(1)(C). And Petitioner does
not argue that he was unaware of the factual predicates of
his claims. See Id. § 2244(d)(1)(D).
AEDPA, “[t]he time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation
under this subsection.” 28 U.S.C. § 2244(d)(2).
The entire period of time for a full round of collateral
review, from the filing of a first state habeas petition to
the time the last state habeas petition is denied, may be
deemed “pending” and tolled, so long as the state
petitioner proceeds from a lower state court to a higher one.
See Carey v. Saffold, 536 U.S. 214, 222-23 (2002).
This includes so-called “gap tolling” for the
periods of time between such state habeas petitions, as long
as that period is “reasonable.” Id.
Periods of up to 60 days are generally presumptively
reasonable. See Evans v. Chavis, 546 U.S. 189, 201
previously discussed, nearly ten years elapsed between the
finality of Petitioner's conviction and the filing of
Petitioner's first state court petition for collateral
review. To the extent the statute of limitations expired
during this time, Petitioner's state habeas petition
filed after the expiration of the statute cannot revive or
otherwise toll the statute. See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)