(HC) Herrera v. Matteson

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ARMANDO E. HERRERA, Case No. 1:19-cv-01150-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE SUMMARILY 13 v. DISMISSED AS UNTIMELY ROBERT NOUSHMEN, ECF No. 1 15 Respondent. OBJECTIONS DUE IN FOURTEEN DAYS 17 Petitioner Armando E. Herrera, a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 22 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Because it appears that the petition is untimely, we order petitioner to show cause why his petition should not be summarily dismissed.

25 Statute of Limitations 26 This court may raise the statute of limitations sua sponte when reviewing a habeas petition. See Day v. McDonough, 547 U.S. 198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 1042 n.3 (9th Cir. 2001) (Federal district courts may consider the timeliness of a state prisoner’s habeas petition to serve the interests of judicial efficiency.).

3 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), petitioners seeking habeas relief under section 2254 must comply with the statute of limitations set by 28 U.S.C. § 2244(d), which provides that: (1) A 1-year period of limitation shall apply to an application for a 7 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 9 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 11 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was 12 prevented from filing by such State action; 13 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has 14 been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or 16 claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or 18 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.

20 The statute of limitations period can be tolled in various ways. For example, a petitioner may be afforded statutory tolling under sections 2244(d)(1)(B-D) and section 2244(d)(2). A petitioner can obtain equitable tolling if he shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Williams v. Filson, 908 F.3d 546, 558 (9th Cir. 2018) (quoting Holland v. Florida, 560 25 U.S. 631, 649 (2010)).

26 Petitioner asserts three grounds for relief: (1) ineffective assistance of counsel, (2) due process violations during his criminal trial, and (3) unlawful application of a gang enhancement.

28 See ECF No. 1 at 4-5. Petitioner’s direct appeal of his criminal conviction was affirmed in part and remanded with directions to the trial court on October 13, 2017. See id. at 336. Petitioner’s | petition for review before the state supreme court was denied on January 17, 2018. See id. at 197.

3 | The expiration of the time for seeking direct review was 90 days later, on April 17, 2018. See | Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (finding that the time within which petitioner | could have filed a petition for certiorari from the United States Supreme Court expired 90 days | after the state supreme court denied his petition for direct review). Absent any tolling, petitioner | had one year, until April 17, 2019, to file his federal petition.!

8 Here, petitioner filed his federal petition on August 20, 2019—over four months after the | April 17, 2019 deadline. Because the record indicates that the petition falls outside the one-year | time period, “petitioner has the burden of demonstrating that he is entitled to tolling.” Smith v. | Duncan, 297 F.3d 809, 815 (9th Cir. 2002), abrogated on other grounds by Pace v. DiGuglielmo, | 544U.S. 408 (2005). Therefore, petitioner must explain to this court how his petition complies | with section 2244(d).

14 | Order 15 Within fourteen days from the date of service of this order, petitioner must show cause || why the court should not summarily dismiss the petition. Failure to comply with this order may | result in the dismissal of the petition.

19 IT IS SO ORDERED.

20 ( Caan Dated: _ February 9, 2020 21 UNIT#D STATES MAGISTRATE JUDGE | No. 206. *6 | Petitioner states that he did not seek collateral review of his conviction at the state level and has | not presented any documentation of such review. See ECF No. 1| at 2-3. Moreover, petitioner has neither argued he is entitled to tolling under one of the narrow exceptions of | sections 2244(d)(1)(B-D), nor has he claimed he should be entitled to equitable tolling.