8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 SHAWN JONES, Case No. 2:19-cv-10868-ODW-KES
12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE
14 KELLY SANTORO, Warden, DISMISSED AS UNTIMELY
15 Respondent.
17 On December 17, 2019 (per proof of service), Shawn Jones (“Petitioner”)
18 constructively filed a Petition for Writ of Habeas Corpus by a Person in State
19 Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) As discussed
20 more fully below, the Court orders Petitioner to show cause why the Petition should 21 not be dismissed as untimely. 22 I. 23 BACKGROUND 24 The following facts are taken from the Petition, from the Court’s own 25 records, or from public records; where necessary, the Court takes judicial notice of 26 the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that 27 is not subject to reasonable dispute because it … can be accurately and readily 28 determined from sources whose accuracy cannot reasonably be questioned.”); 1 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take 2 judicial notice of its own records in other cases, as well as the records of an inferior 3 court in other cases.”). 4 Petitioner was convicted in 2014 of armed robbery and related crimes. (Dkt. 5 1 at 2.1) The California Court of Appeal affirmed his conviction. People v. Jones, 6 No. B258757, 2016 WL 816486, 2016 Cal. App. Unpub. LEXIS 1493 (Mar. 2, 7 2016). He next filed a petition for review by the California Supreme Court which 8 was denied on May 11, 2016. See People v. Jones, No. S233664, 2016 Cal. LEXIS 9 3396 (May 11, 2016). He did not file a petition for certiorari in the U.S. Supreme 10 Court. (Dkt. 1 at 5.) 11 Petitioner filed a state habeas petition with the Los Angeles County Superior 12 Court on August 17, 2017. (Id. at 3.) He has no additional state habeas petitions 13 pending. (Id. at 10.) 14 II. 15 DISCUSSION 16 A. Legal Standard. 17 The Ninth Circuit has held that the district court has the authority to raise the 18 statute of limitations issue sua sponte when untimeliness is obvious on the face of 19 the Petition and to summarily dismiss a habeas petition on that ground pursuant to 20 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 21 Courts, so long as the Court “provides the petitioner with adequate notice and an 22 opportunity to respond.” Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001); 23 see also Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004). 24 1. One-Year Statute of Limitations. 25 This action is subject to the Antiterrorism and Effective Death Penalty Act of 26 1996 (“AEDPA”). 27
28 1 The Court refers to the pagination imposed by the Court’s electronic filing system. 1 AEDPA provides as follows: 2 (d) (1) A 1-year period of limitation shall apply to an application for a 3 writ of habeas corpus by a person in custody pursuant to the judgment 4 of a State court. The limitation period shall run from the latest of-- 5 (A) the date on which the judgment became final by the conclusion of 6 direct review or the expiration of the time for seeking such review; 7 (B) the date on which the impediment to filing an application created 8 by State action in violation of the Constitution or laws of the United 9 States is removed, if the applicant was prevented from filing by such 10 State action; 11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly 13 recognized by the Supreme Court and made retroactively applicable to 14 cases on collateral review; or 15 (D) the date on which the factual predicate of the claim or claims 16 presented could have been discovered through the exercise of due 17 diligence. 18 (2) The time during which a properly filed application for State post- 19 conviction or other collateral review with respect to the pertinent 20 judgment or claim is pending shall not be counted toward any period 21 of limitation under this subsection. 22 28 U.S.C. § 2244(d). 23 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 24 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 25 (2009). The statute of limitations period generally runs from “the date on which the 26 judgment became final by the conclusion of direct review or the expiration of the 27 time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). “[F]or a state prisoner 28 who does not seek review in a State’s highest court, the judgment becomes ‘final’ 1 [for purposes of § 2244(d)(1)(a)] on the date that the time for seeking such review 2 expires.” Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). In contrast, where a state 3 defendant seeks direct review in a state’s highest court, the judgment becomes final 4 when time for seeking certiorari review in the U.S. Supreme Court expires. See 5 Jimenez, 555 U.S. at 120. This is because the U.S. Supreme Court has jurisdiction 6 over final decisions of the highest state court “in which a decision could be had” 7 respecting a constitutional right or other federal law. 28 U.S.C. § 1257(a). To 8 appeal to the U.S. Supreme Court, a petition for writ of certiorari must be filed 9 within 90 days after entry of the state court judgment. U.S. Sup. Ct. R. 13. 10 2. Statutory Tolling. 11 AEDPA provides for statutory tolling, as follows: 12 The time during which a properly filed application for State post- 13 conviction or other collateral review with respect to the pertinent 14 judgment or claim is pending shall not be counted toward any period 15 of limitation under this subsection. 16 28 U.S.C. § 2244(d)(2). The U.S. Supreme Court has interpreted this language to 17 mean that AEDPA’s statute of limitations is tolled from the time the first state 18 habeas petition is filed until the California Supreme Court rejects a petitioner’s final 19 collateral challenge, so long as the petitioner has not unreasonably delayed during 20 the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 219-21 (2002) 21 (holding that, for purposes of statutory tolling, a California petitioner’s application 22 for collateral review remains pending during the intervals between the time a lower 23 state court denies the application and the time the petitioner files a further petition 24 in a higher state court); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. 25 denied, 529 U.S. 1104 (2000) (The statute is tolled from “the time the first state 26 habeas petition is filed until the California Supreme Court rejects the petitioner’s 27 final collateral challenge.”).
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 SHAWN JONES, Case No. 2:19-cv-10868-ODW-KES
12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE
14 KELLY SANTORO, Warden, DISMISSED AS UNTIMELY
15 Respondent.
17 On December 17, 2019 (per proof of service), Shawn Jones (“Petitioner”)
18 constructively filed a Petition for Writ of Habeas Corpus by a Person in State
19 Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) As discussed
20 more fully below, the Court orders Petitioner to show cause why the Petition should 21 not be dismissed as untimely. 22 I. 23 BACKGROUND 24 The following facts are taken from the Petition, from the Court’s own 25 records, or from public records; where necessary, the Court takes judicial notice of 26 the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that 27 is not subject to reasonable dispute because it … can be accurately and readily 28 determined from sources whose accuracy cannot reasonably be questioned.”); 1 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take 2 judicial notice of its own records in other cases, as well as the records of an inferior 3 court in other cases.”). 4 Petitioner was convicted in 2014 of armed robbery and related crimes. (Dkt. 5 1 at 2.1) The California Court of Appeal affirmed his conviction. People v. Jones, 6 No. B258757, 2016 WL 816486, 2016 Cal. App. Unpub. LEXIS 1493 (Mar. 2, 7 2016). He next filed a petition for review by the California Supreme Court which 8 was denied on May 11, 2016. See People v. Jones, No. S233664, 2016 Cal. LEXIS 9 3396 (May 11, 2016). He did not file a petition for certiorari in the U.S. Supreme 10 Court. (Dkt. 1 at 5.) 11 Petitioner filed a state habeas petition with the Los Angeles County Superior 12 Court on August 17, 2017. (Id. at 3.) He has no additional state habeas petitions 13 pending. (Id. at 10.) 14 II. 15 DISCUSSION 16 A. Legal Standard. 17 The Ninth Circuit has held that the district court has the authority to raise the 18 statute of limitations issue sua sponte when untimeliness is obvious on the face of 19 the Petition and to summarily dismiss a habeas petition on that ground pursuant to 20 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 21 Courts, so long as the Court “provides the petitioner with adequate notice and an 22 opportunity to respond.” Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001); 23 see also Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004). 24 1. One-Year Statute of Limitations. 25 This action is subject to the Antiterrorism and Effective Death Penalty Act of 26 1996 (“AEDPA”). 27
28 1 The Court refers to the pagination imposed by the Court’s electronic filing system. 1 AEDPA provides as follows: 2 (d) (1) A 1-year period of limitation shall apply to an application for a 3 writ of habeas corpus by a person in custody pursuant to the judgment 4 of a State court. The limitation period shall run from the latest of-- 5 (A) the date on which the judgment became final by the conclusion of 6 direct review or the expiration of the time for seeking such review; 7 (B) the date on which the impediment to filing an application created 8 by State action in violation of the Constitution or laws of the United 9 States is removed, if the applicant was prevented from filing by such 10 State action; 11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly 13 recognized by the Supreme Court and made retroactively applicable to 14 cases on collateral review; or 15 (D) the date on which the factual predicate of the claim or claims 16 presented could have been discovered through the exercise of due 17 diligence. 18 (2) The time during which a properly filed application for State post- 19 conviction or other collateral review with respect to the pertinent 20 judgment or claim is pending shall not be counted toward any period 21 of limitation under this subsection. 22 28 U.S.C. § 2244(d). 23 Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file 24 a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114 25 (2009). The statute of limitations period generally runs from “the date on which the 26 judgment became final by the conclusion of direct review or the expiration of the 27 time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A). “[F]or a state prisoner 28 who does not seek review in a State’s highest court, the judgment becomes ‘final’ 1 [for purposes of § 2244(d)(1)(a)] on the date that the time for seeking such review 2 expires.” Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). In contrast, where a state 3 defendant seeks direct review in a state’s highest court, the judgment becomes final 4 when time for seeking certiorari review in the U.S. Supreme Court expires. See 5 Jimenez, 555 U.S. at 120. This is because the U.S. Supreme Court has jurisdiction 6 over final decisions of the highest state court “in which a decision could be had” 7 respecting a constitutional right or other federal law. 28 U.S.C. § 1257(a). To 8 appeal to the U.S. Supreme Court, a petition for writ of certiorari must be filed 9 within 90 days after entry of the state court judgment. U.S. Sup. Ct. R. 13. 10 2. Statutory Tolling. 11 AEDPA provides for statutory tolling, as follows: 12 The time during which a properly filed application for State post- 13 conviction or other collateral review with respect to the pertinent 14 judgment or claim is pending shall not be counted toward any period 15 of limitation under this subsection. 16 28 U.S.C. § 2244(d)(2). The U.S. Supreme Court has interpreted this language to 17 mean that AEDPA’s statute of limitations is tolled from the time the first state 18 habeas petition is filed until the California Supreme Court rejects a petitioner’s final 19 collateral challenge, so long as the petitioner has not unreasonably delayed during 20 the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214, 219-21 (2002) 21 (holding that, for purposes of statutory tolling, a California petitioner’s application 22 for collateral review remains pending during the intervals between the time a lower 23 state court denies the application and the time the petitioner files a further petition 24 in a higher state court); Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. 25 denied, 529 U.S. 1104 (2000) (The statute is tolled from “the time the first state 26 habeas petition is filed until the California Supreme Court rejects the petitioner’s 27 final collateral challenge.”). Statutory tolling “does not permit the reinitiation of 28 the limitations period that has ended before the state petition was filed[,]” even if 1 the state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th 2 Cir.), cert. denied, 540 U.S. 924 (2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th 3 Cir. 2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. 4 denied, 534 U.S. 1143 (2002). 5 3. Equitable Tolling. 6 In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that 7 AEDPA’s one-year limitation period is also subject to equitable tolling in 8 appropriate cases. However, in order to be entitled to equitable tolling, the 9 petitioner must show both that (1) he has been pursuing his rights diligently, and 10 (2) some extraordinary circumstance stood in his way and prevented his timely 11 filing. See Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The 12 Ninth Circuit has held that the Pace standard is consistent with the Ninth Circuit’s 13 “sparing application of the doctrine of equitable tolling.” Waldron-Ramsey v. 14 Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 558 U.S. 897 (2009). Thus, 15 “[t]he petitioner must show that ‘the extraordinary circumstances were the cause of 16 his untimeliness and that the extraordinary circumstances made it impossible to file 17 a petition on time.’” Porter v. Ollison, 620 F.3d 952, 959 (2010) (quoting Ramirez 18 v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger 19 equitable tolling [under AEDPA] is very high, lest the exceptions swallow the 20 rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.) (second alteration in 21 original), cert. denied, 537 U.S. 1003 (2002). Consequently, as the Ninth Circuit 22 has recognized, equitable tolling will be justified in few cases. Spitsyn v. Moore, 23 345 F.3d 796, 799 (9th Cir. 2003). “To apply the doctrine in ‘extraordinary 24 circumstances’ necessarily suggests the doctrine’s rarity, and the requirement that 25 extraordinary circumstances ‘stood in his way’ suggests that an external force must 26 cause the untimeliness, rather than, as we have said, merely ‘oversight, 27 miscalculation or negligence on [the petitioner’s] part, all of which would preclude 28 the application of equitable tolling.’” Waldron-Ramsey, 556 F.3d at 1011 1 | (alteration in original) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2 | 2008)). 3 The burden of demonstrating that AEDPA’s one-year limitation period was 4 | sufficiently tolled, whether statutorily or equitably, rests with the petitioner. See, 5 | e.g., Pace, 544 U.S. at 418; Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010); 6 || Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (as amended); Miranda, 292 7 | F.3d at 1065. 8 | B. ‘The Petition Appears to Be Untimely. 9 Petitioner’s 2014 conviction became final 90 days after the California 10 | Supreme Court denied review, 1.e., on August 9, 2016. Absent tolling, his AEDPA 11 | filing deadline expired one year later on August 9, 2017. Petitioner did not file any 12 | state habeas petitions before August 9, 2017 that could potentially create statutory 13 | tolling. 14 IT IS THEREFORE ORDERED that, on or before February 5, 2020, 15 | Petitioner shall show cause in writing, if any he has, why the Court should not 16 | recommend that this action be dismissed with prejudice on the ground of 17 | untimeliness. In his response to the order to show cause, Petitioner may wish to 18 | identify (1) any state filings that Petitioner contends create statutory tolling and 19 | (2) any “extraordinary circumstances” that Petitioner contends create equitable 20 | tolling. HomsE. Seat 22 | DATED: January 06, 2020 mar) 6. S 3 KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE
25 26 27 28