German Zapata v. Brian Cates

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. 8:21-cv-1292-JAK (SK) Date August 16, 2021 Title German Zapata v. Brian Cates Present: The Honorable Steve Kim, United States Magistrate Judge

Connie Chung n/a Deputy Clerk Court Smart / Recorder Attorneys Present for Plaintiff: Attorneys Present for Defendant(s):

None present None present

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE

In July 2021, Petitioner filed a petition under 28 U.S.C. § 2254 challenging his 2015 conviction and sentence for various child sex crimes. (ECF 1). On its face, the petition appears untimely. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (federal courts may take judicial notice of public dockets for state court proceedings).

After Petitioner’s unsuccessful appeal to the California Court of Appeal (Case No. G052391), the California Supreme Court denied review in June 2017 (Case No. S240917). (ECF 1 at 4). Because it does not appear Petitioner filed a petition for writ of certiorari in the United States Supreme Court, his conviction became final 90 days later in September 2017. See 28 U.S.C. § 2101; Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). From then, without any statutory or equitable tolling, Petitioner had one year—until September 2018—to file □ timely federal petition. See 28 U.S.C. § 2244(d)(1)(A). No statutory tolling appears available, however, because Petitioner evidently filed no state habeas petitions. See 28 U.S.C. § 2244(d)(2). Nor does there appear any basis for equitable tolling on the face of the petition. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). It is Petitioner’s burden to prove equitable tolling. See Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012).

For all these reasons, Petitioner is ORDERED TO SHOW CAUSE on or before Wednesday, September 15, 2021 why the Court should not dismiss the petition as untimely. If Petitioner files no timely response to this order, this action may be involuntarily dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b); L-R. 41-1. If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss the action under Federal Rule of Civil Procedure by filing a Voluntary Notice of Dismissal on the attached Form CV-09.