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King v. Neuschmid

United States District Court, C.D. California

December 13, 2019

Micheal Steven King
v.
Robert Neuschmid

          Present: The Honorable Douglas F. McCormick, United States Magistrate Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) Order to Show Cause

         On 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 time-barred.

         I. State Court Proceedings

         Petitioner 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 Information, https://appellatecases.couitinfo.ca.gov/search.cfm?dist=0 (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 id.

         H. Timeliness of the Petition

         A. Facial Untimeliness

         Under 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. § 2244(d)(1)(A).

         Because 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 facially untimely.

         B. Trigger Date

         From 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).

         C. Statutory Tolling

         Under 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 (2006).

         As 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) (“[S]ection ...


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