(HC) Menendez v. Warden

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JUAN PAYTON MENENDEZ, Case No. 2:22-cv-00047-JDP (HC) 12 Petitioner, ORDER FINDING THAT THE PETITION IS LIKELY TIME-BARRED AND GRANTING 13 v. LEAVE TO AMEND WITHIN THIRTY DAYS WARDEN, ECF No. 1 15 Respondent.

17 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that the petition is likely time-barred. I will give petitioner a chance to amend and explain why his claims should proceed before recommending dismissal of this action.

21 The petition is before me for preliminary 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 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

26 Petitioner is challenging a murder conviction from 2007. ECF No. 1 at 1. The Anti- Terrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations for state prisoners to file their federal habeas petition. 28 U.S.C. § 2244(d)(1). Here, the petition is | roughly fifteen years past due. Petitioner may be entitled to tolling for time spent pursuing his | direct appeal or state habeas petitions, but it is unlikely to bridge the lengthy gap between his | conviction and the filing of this petition.

4 I will allow petitioner to file an amended complaint that explains why his claims should || proceed despite the apparent time bar.

6 It is ORDERED that: 7 1. Petitioner may file an amended § 2254 petition within thirty days of this order’s | entry. If he does not, I will recommend that the current petition be dismissed for the reasons | stated in this order.

10 2. The Clerk of Court is directed to send petitioner a federal habeas form.

IT IS SO ORDERED.

13 ( 1 ow — Dated: _ April 11, 2022 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE