White v. Madden

          ORDER SUMMARILY DISMISSING PETITION

          STEPHEN V. WILSON United States District Judge.

         Petitioner Russell Lee White (“Petitioner”) filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2254, alleging that failure to apply California Senate Bill (“SB”) 1391^[1] retroactively and resentence him violates his due process and equal protection rights. Dkt. 1. As the Petition appeared to be untimely on its face, Petitioner was ordered to show cause why this action should not be dismissed. Having considered Petitioner's response, for the reasons discussed below, the Court summarily dismisses the Petition as untimely.

         I.

         PROCEDURAL HISTORY

         In 2005, in Los Angeles County Superior Court, Petitioner pleaded no contest to robbery, rape, and lewd or lascivious act upon a child who was under fourteen years of age. Pet. at 2 (CM/ECF pagination); Los Angeles County Superior Court (“LASC”) at www.lacourt.org.^[2] Petitioner contends he was sentenced to thirty years to life in state prison on May 11, 2005. Pet. at 2. Petitioner did not file an appeal or a petition for review. Pet. at 2-3.

         On or about January 24, 2019, Petitioner collaterally challenged his conviction by filing a habeas petition in the superior court. Pet. at 3, 13, 23-24. That petition was denied on February 1, 2019. Id. at 4, 23-24. Petitioner then filed a habeas petition in the California Court of Appeal on or about March 18, 2019, which was denied on April 5, 2019. Id. at 4, 26. Petitioner next filed a habeas petition in the California Supreme Court on or about June 13, 2019, and a supplement on or about September 16, 2019. Id. at 4, 10-18, 30-37; Appellate Courts Case Information at https://appellatecases.courtinfo.ca.gov. That petition was denied on September 25, 2019. Pet. at 5, 28.

         On October 4, 2019, ^[3] Petitioner constructively filed the instant Petition. On November 4, 2019, the assigned Magistrate Judge issued an Order to Show Cause, explaining that the Petition appeared to contain one or more unexhausted claims and was untimely on its face. Dkt. 6 (“OSC”). After explaining why the Petition appeared untimely, the Court ordered Petitioner to show cause why the action should not be dismissed as untimely. Id. Petitioner filed his response to the OSC on November 25, 2019. Dkt. 7 (“Reply”).

         II.

         DISCUSSION

         As the Petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the AEDPA's one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

         Title 28, United States Code, Section 2244(d)(1) provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(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 ...