Opinion
1:05-cv-01216-LJO-TAG HC.
March 16, 2007
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED FOR UNTIMELINESS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant habeas petition was filed on September 27, 2005. (Doc. 1).
DISCUSSION
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).
The Ninth Circuit, in Herbst, concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. 260 F.3d at 1041-1042.
B. Limitation Period for Filing a Petition for Writ of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The original petition in this case was filed on March 1, 2004 (Doc. 1), and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
In this case, the petition for review was denied by the California Supreme Court on June 23, 2004. (Doc. 1, p. 2). Thus, direct review would conclude on September 21, 2004, when the ninety-day period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 463 U.S. 880, 887 (1983);Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998). Petitioner would then have one year from September 21, 2004, or until September 21, 2005, absent applicable statutory or equitable tolling, within which to file his federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1).
The instant petition was filed on September 27, 2005, six days after the expiration of the AEDPA's one-year statute of limitations, and therefore it would appear that, absent applicable statutory or equitable tolling, the instant petition is untimely and should be dismissed.
Title 28 U.S.C. § 2244(d)(2) states that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one year limitation period. 28 U.S.C. § 2244(d)(2). In this case, Petitioner indicates in his petition that he did not seek any collateral review in the state courts prior to filing his federal petition for writ of habeas corpus on September 27, 2004. Therefore, Petitioner is not entitled to statutory tolling.
The one-year period may also be subject to equitable tolling if "extraordinary circumstances beyond a prisoner's control" have made it impossible for the petition to be filed on time. Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1997); Calderon v. United States District Court for the Central District of California (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997) (noting that "[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time"). "When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate." Lott v. Mueller, 304 F.3d 918, 922 (9th Cir. 2002) (quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)).
However, it is extremely difficult for a petitioner to establish equitable tolling. In order to establish equitable tolling, a prisoner must demonstrate that "extraordinary circumstances beyond [his] control" made it "impossible to file a petition on time." (Beeler), 128 F.3d at 1288. In Allen v. Lewis, 255 F.3d 798, 801 (9th Cir. 2001), the Ninth Circuit concluded that the petitioner "must show that the `extraordinary circumstances' were the but-for and proximate cause of his untimeliness." Recently, the Ninth Circuit reaffirmed this rule in Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). In that case, the Court pointed out that the determination vis-a-vis equitable tolling is "highly fact-dependant" and that the petitioner "bears the burden of showing that equitable tolling is appropriate." Id. Here, Petitioner has made no claim of equitable tolling.
The only other way in which the one-year rule can be extended is via the "mailbox rule." The "mailbox rule" provides that a federal habeas petitioner's petition is deemed filed on the date a petitioner delivers it to prison authorities, Houston v. Lack, 487 U.S. 266 (1988). Petitioner may have handed his petition to prison authorities for filing with this Court on or before September 21, 2005, thus making the petition timely. Unfortunately, Petitioner seems unaware of the AEDPA's statute of limitations and has provided no information in his petition regarding when he delivered the petition to prison authorities nor has he provided any supporting documentation to substantiate such a claim.
Thus, in the absence of statutory or equitable tolling, and without any information regarding the potential applicability of the "mailbox rule," the Court is left to conclude that this petition is untimely and should be summarily dismissed.
ORDER
Accordingly, Petitioner is ORDERED to SHOW CAUSE why the instant petition should not be dismissed for violating the limitations period of 28 U.S.C. § 2244(d). Petitioner is GRANTED thirty (30) days from the date of service of this order to respond.
Petitioner is forewarned that his failure to comply with this order may result in a Recommendation that the Petition be dismissed pursuant to Local Rule 11-110.
IT IS SO ORDERED.