United States District Court, C.D. California
Kevin B. Mam
Present: The Honorable Douglas F. McCormick, United States
CIVIL MINUTES - GENERAL
(IN CHAMBERS) Order to Show Cause
December 19, 2019, Petitioner constructively filed pro se a
Petition for Writ of Habeas Corpus by a Person in State
Custody challenging his conviction for first degree murder
and an enhancement for personally discharging a firearm.
See Dkt. 1 ("Petition") at 2, 23.
was convicted in August 2006 and sentenced in September 2005.
See id. at 38-39. The California Court of Appeal
originally affirmed in full but on rehearing remanded for the
removal of a 10-year gang enhancement, but otherwise affirmed
Petitioner's conviction in May 2008. See
Petition at 44-45; see also Appellate Courts Case
Information, 2nd Appellate District,
(No. B194678). Petitioner petitioned the California Supreme
Court for review; the California Supreme Court denied his
petition on August 20, 2008. See Appellate Courts
years later, on October 20, 2015, Petitioner filed a petition
for writ of habeas corpus in the California Court of Appeal.
See Appellate Courts Case Information, 2nd Appellate
(No. B267642). The Court denied the writ and closed the case
on October 27, 2015. See id.
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a one-year limitations 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). Ordinarily, the limitations period runs from the
date on which the petitioner's judgment of conviction
"became final by the conclusion of direct review or the
expiration of the time for seeking such review." LI If a
petitioner files a direct the highest state court but does
not petition for writ of certiorari in the United States
Supreme Court, the CV-90 (12/02) CIVIL MINUTES-GENERAL
Initials of Deputy Clerk: nb conviction becomes final ninety
days after the state court issues its decision. See Bowen
v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Petitioner's conviction became final no later than
November 18, 2008, ninety days after California Supreme Court
denied his petition for review. AEDPA's one-year
limitations period commenced the next day, November 19, 2008
and expired on November 19, 2009. See 28 U.S.C.
§ 2244(d)(1). However, Petitioner did not file the
instant Petition until December 19, 2019. In the absence of
any applicable tolling, it thus appears that the Petition is
untimely by over ten years.
habeas petitioner is entitled to statutory tolling of
AEDPA's one-year statute of limitations while a
‘properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.'” Nedds v.
Calderon, 678 F.3d 777, 780 (9th Cir. 2012) (quoting 28
U.S.C. § 2244(d)(2)). Statutory tolling does not extend
to the time between the date on which a judgment becomes
final and the date on which the petitioner files his first
state collateral challenge because, during that time, there
is no case “pending.” Nino v. Galaza,
183 F.3d 1003, 1006 (9th Cir. 1999).
noted above, Petitioner did not file a petition for writ of
habeas corpus until October 20, 2015. Petitioner is not
entitled to any period of statutory tolling because he did
not file his petition in state court until after the AEDPA
limitations period expired. See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)
(“[S]ection 2244(d) does not permit the reinitiation of
the limitations period that has ended before the state
petition was filed.”).
addition to the statutory tolling provided for by §
2244(d)(2), the “AEDPA limitations period may be
tolled” when it is “equitably required.”
Doe v. Busby, 661 F.3d 1001, 1011 (9th Cir. 2011).
The “threshold necessary to trigger equitable tolling
[under AEDPA] is very high.” Bills v. Clark,
628 F.3d 1092, 1097 (9th Cir. 2010) (alteration in original).
A court may grant equitable tolling only where
“‘extraordinary circumstances' prevented an
otherwise diligent petitioner from filing on time.”
Forbess v. Franke, 749 F.3d 837, 839 (9th Cir.
2014). Here, Petitioner offers no explanation for his failure
to file a habeas petition in a timely manner or contend that
he took any action before the AEDPA limitations period
expired. Petitioner is thus not currently entitled to
based upon the Petition as currently submitted, §
2244(d)(1) appears to bar this action. Petitioner is
therefore ORDERED TO SHOW CAUSE why this action should not be
dismissed as untimely by filing a written response no later
than twenty-eight (28) days after he is served with this
Order. Petitioner is advised to inform the Court of any
reason demonstrating entitlement to statutory or equitable
tolling. Plaintiff may instead request a voluntary dismissal
of this action pursuant to Federal Rule of Civil Procedure
41(a). The Clerk of the Court has attached a Notice of
Dismissal form. Petitioner is expressly warned that any
dismissed claims may be later subject to AEDPA's statute
is warned that his failure to timely respond to this Order
will result in the Court dismissing this action with
prejudice as untimely and ...