(HC) Shotwell v. Covello

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA IMMANUEL SHOTWELL, Case No. 2:24-cv-00318-JDP (HC) 12 Petitioner, ORDER 13 v. SCREENING THE PETITION, OFFERING LEAVE TO AMEND, AND GRANTING PATRICK COVELLO, PETITIONER’S APPLICATION TO PROCEED IN FORMA PAUPERIS 15 Respondent.

ECF Nos. 1 & 2 18 Petitioner, a state prisoner, brings this action under § 2254 and alleges several claims related to a conviction that was finalized in 2019. ECF No. 1 at 1-2. His petition appears to be time-barred. I will give him leave to amend so that he may explain why it should proceed.

21 Additionally, I will grant petitioner’s application to proceed in forma pauperis. ECF No. 2.

22 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).

27 Petitioner has previously brought claims related to this conviction in this district. In Shotwell v. Couello, No. 2:22-cv-02176-TLN-EFB, it was determined that those claims were | barred by the one-year statute of limitations contained in the Anti-Terrorism and Effective Death | Penalty Act (‘AEDPA”). Id. at ECF Nos. 16 & 17. In that case, Magistrate Judge Brennan | determined that the last day for petitioner to file a federal habeas petition attacking this conviction | was June 22, 2022. Id. at ECF No. 16. The instant action was filed in January 2024. ECF No. 1.

5 | Thus, it appears that petitioner’s claims are time-barred. I will defer recommending dismissal and | allow petitioner an opportunity to amend. He should explain why, if at all, his claims should be | considered timely.

8 It is hereby ORDERED that: 9 1. Petitioner may file an amended petition within thirty days of this order’s entry. If | he fails to do so, I will recommend that this action be dismissed.

11 2. The Clerk of Court is directed to send petitioner a section 2254 habeas form with | this order.

13 3. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is GRANTED.

1s IT IS SO ORDERED.

16 ( 1 Sty — Dated: _ May 7, 2024 q——— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE