Silvino R. Torrez v. Timothy E. Busby
Filing
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ORDER TO SHOW CAUSE RE TIMELINESS by Magistrate Judge Ralph Zarefsky: Response to Order to Show Cause due no later than 21 days from the filing date of this Order. (See document for details). (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SILVINO R. TORREZ,
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Petitioner,
vs.
TIMOTHY E. BUSBY, Warden,
Respondent.
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CASE NO. CV 12-2195 PSG (RZ)
ORDER TO SHOW CAUSE
RE TIMELINESS
The Court issues this Order To Show Cause directed to Plaintiff because the
action may be time-barred.
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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
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(“AEDPA”), a portion of which established a one-year statute of limitations for bringing
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a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the
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limitations period commences on the date a petitioner’s conviction became final. See 28
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U.S.C. § 2244(d)(1). The limitations period will start instead on one of the following dates,
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whichever is latest, if any of them falls after the petitioner’s conviction becomes final: the
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date on which a State-created impediment – itself a violation of Constitutional law – was
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removed; the date on which a newly-recognized Constitutional right was established; or
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the date on which the factual predicate for the claims could have been discovered through
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the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
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The time spent in state court pursuing collateral relief in a timely manner is
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excluded, see 28 U.S.C. § 2244(d)(2), and the courts have held that the statute also is
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subject to equitable tolling. See Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560,
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2562-63, 177 L. Ed. 2d 130 (2010).
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The current petition was filed on March 15, 2012, but for purposes of this
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Report the Court assumes a constructive filing date of February 7, its signature date. From
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the face of the petition and from judicially-noticeable materials, the Court discerns as
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follows:
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(a)
counts of committing lewd acts on a child under 14. Pet. ¶ 2.
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(b)
The California Court of Appeal affirmed in November 2009. The California
Supreme Court denied further direct review on February 3, 2010. Pet. ¶¶ 3, 4.
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In 2008, a Los Angeles County Superior Court jury convicted Petitioner of several
(c)
Petitioner apparently did not seek certiorari in the United States Supreme Court.
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His conviction therefore became final after May 5, 2010, when the high court’s 90-
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day period for seeking such relief expired. See SUP. CT. R. 13.1. His one-year
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AEDPA limitations period began to run on that date.
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(d)
Six months passed without any apparent court challenges by Petitioner. On
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November 1, 2010, Petitioner filed a since-dismissed habeas petition in this Court,
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case number CV 10-8224 PSG (RZ). Respondent soon moved to dismiss the action
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as “mixed,” in that nearly all of Petitioner’s claims had not been exhausted in the
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California Supreme Court prior to his filing in this Court. Petitioner filed no
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opposition.
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(e)
On May 5, 2010, in response to the undersigned’s April 12, 2010 Report
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recommending the exhaustion-based dismissal of the action, Petitioner filed a
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“Motion To Dismiss” his own “Petition Without Prejudice . . . Or [for a] Stay and
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Abeyance.” Noting that Petitioner included no argument in favor of his suggestion
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of a stay – rather, he simply said he wanted one – the Court directed the Clerk to
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treat his motion as a Notice Of Voluntary Dismissal pursuant to FED. R. CIV. P. 41(a)
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on May 13, 2011. The Court warned that it “makes no assurance to Petitioner that,
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should he return to this Court, his new petition will not face challenges asserting
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untimeliness or other shortcomings.”
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(f)
That court denied relief on January 25, 2012.
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On May 25, 2011, Petitioner filed a habeas petition in the California Supreme Court.
(g)
The petition, bearing a signature date of February 7, 2012, was filed on March 15.
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Unless this Court has miscalculated the limitations period, or some form of
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additional tolling applies in sufficient measure, this action is time-barred. It became stale
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early in May of 2011, a year after Petitioner’s conviction became final. Petitioner’s prior,
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abortive federal-court petition did not toll the applicable one-year limitations period, unlike
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a properly-filed state-court habeas challenge. 28 U.S.C. § 2244(d)(2); Duncan v. Walker,
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533 U.S. 167, 181-82, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001).
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No basis appears in the petition for a later AEDPA-limitations-period starting
date. Nor does the record disclose any basis for equitable tolling.
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Petitioner believes that his current petition should be allowed to “relate back”
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to his 2010 petition. He presaged this possibility in his voluntary dismissal motion in 2011,
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see Mem. at 3, and he attaches a five-line Motion To Relate Back to the new petition. But
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like the “stay and abey” aspect of his May 5, 2010 motion in the prior action, he presents
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no argument demonstrating that his current petition properly relates back to his prior one.
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This Court may raise sua sponte the question of the statute of limitations bar,
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so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260
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F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause in writing why this
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action should not be dismissed as being barred by the one-year statute of limitations.
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Petitioner shall file his response to the Court’s Order to Show Cause not later than 21 days
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from the filing date of this Order.
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If Petitioner does not file a response within the time allowed, the action may
be dismissed for failure to timely file, and for failure to prosecute.
IT IS SO ORDERED.
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DATED: March 22, 2012
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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE
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