United States District Court, C.D. California, Western Division
ORDER SUMMARILY DISMISSING PETITION
STEPHEN V. WILSON United States District Judge.
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”)
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.
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. 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.
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.
October 4, 2019,  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”).
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).
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