(HC) Aluizo v. Gamboa

• Court: District Court, E.D. California
• Decided: May 7, 2025
• Docket: 1:25-cv-00513
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS SANTANA ALUIZO Case No. 1:25-cv-00513-CDB (HC)

12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. AS UNTIMELY

14 MARTIN GAMBOA, Warden (Doc. 1)

15 Respondent. 30-Day Deadline

16 17 Petitioner Carlos Santana Aluizo (“Petitioner”) is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition”). Petitioner 19 challenges his 2021 convictions in the Merced County Superior Court for violations of California 20 Penal Code §§ 288.7(b) and 288(a). (Id. at 1). Because it appears the Petition is untimely, the 21 Court will afford Petitioner an opportunity to show cause why the Court should not dismiss the 22 Petition. 23 Preliminary Screening 24 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 25 review of each petition for writ of habeas corpus. Pro se habeas corpus petitions are to be 26 liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must 27 dismiss a petition “[i]f it plainly appears from the petition … that the petitioner is not entitled to relief.” Habeas Rule 4; see Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 1 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1988). In conducting this initial review, the Court may 2 sua sponte raise the timeliness of the petition but should only dismiss after allowing the petitioner 3 adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198, 210 (2006) 4 (holding that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness 5 of a state prisoner’s habeas petition” but “before acting on its own initiative, … must accord the 6 parties fair notice and an opportunity to present their positions”). 7 Discussion 8 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute 9 of limitations applies to petitions seeking habeas relief under § 2254. 28 U.S.C. § 2244(d)(1). 10 Generally, the one-year clock starts to run on “the date on which the judgment became final by 11 the conclusion of direct review or the expiration of the time for seeking such review.” 42 U.S.C. 12 § 2244(d)(1)(A). Statutory tolling applies to the “time during which a properly filed application 13 for State post-conviction or other collateral review with respect to the pertinent judgment or claim 14 is pending.” 42 U.S.C. § 2244(d)(2). In limited circumstances, a petitioner is entitled to delayed 15 commencement of the limitations period. 42 U.S.C. § 2244(d)(1)(B)-(D). Additionally, equitable 16 tolling may be granted to a petitioner under limited circumstances if he shows that (1) he has been 17 pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and 18 prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). 19 Here, Petitioner filed his federal habeas petition on April 27, 2025.1 (Doc. 1 at 15). 20 Petitioner indicates his conviction was affirmed on direct appeal in “2022”2 and the California 21 Supreme Court declined review on November 16, 2022. (Id. at 2-3). Thus, Petitioner’s 22 conviction became final on February 14, 2023, when his deadline to seek certiorari from the 23 United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The 24 one-year statute of limitations to file a federal petition began to run the next day. Patterson v. 25 Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). The only subsequent state collateral motion 26

27 1 The Court applies the mailbox rule and deems the Petition filed on the date Petitioner delivered it to the prison authorities for mailing to the Court. Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000). 1 | Petitioner identified was filed on March 19, 2025. (Doc. 1 at 3). However, state habeas petitions 2 | filed after the one-year statute of limitations expired do not revive the statute of limitations and 3 | have no tolling effect. See Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013) (state petition 4 | filed over one year after conviction became final did not render subsequent federal petition 5 | timely). Petitioner fails to plead facts demonstrating he is entitled to the delayed triggering events 6 | in § 2244(d)(1)(B)-(D) or equitable tolling. Because it appears in this case the statute of 7 | limitations expired no later than February 16, 2024, the Petition is untimely. 8 However, before the Court dismisses the petition as untimely, it will afford Petitioner an 9 | opportunity to explain how his petition complies with § 2244(d) or why equitable tolling should 10 | apply. In presenting any argument regarding equitable tolling, Petitioner is cautioned to 11 | specifically address the requirements set forth in Holland. 12 | Conclusion and Order 13 Accordingly, IT IS ORDERED: 14 Within 30 days from the date of this order, Petitioner SHALL show cause in writing why 15 | the Petition should not be dismissed as untimely. 16 Any failure to timely comply with this Order may result in a recommendation that the 17 | Petition be dismissed. 18 | IT IS SO ORDERED. | Dated: _May 7, 2025 | br Pr 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28