Silvino R. Torrez v. Timothy E. Busby

Filing 3

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SILVINO R. TORREZ, 12 13 14 15 Petitioner, vs. TIMOTHY E. BUSBY, Warden, Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) 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. 19 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 20 (“AEDPA”), a portion of which established a one-year statute of limitations for bringing 21 a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the 22 limitations period commences on the date a petitioner’s conviction became final. See 28 23 U.S.C. § 2244(d)(1). The limitations period will start instead on one of the following dates, 24 whichever is latest, if any of them falls after the petitioner’s conviction becomes final: the 25 date on which a State-created impediment – itself a violation of Constitutional law – was 26 removed; the date on which a newly-recognized Constitutional right was established; or 27 the date on which the factual predicate for the claims could have been discovered through 28 the exercise of due diligence. 28 U.S.C. § 2244(d)(1). 1 The time spent in state court pursuing collateral relief in a timely manner is 2 excluded, see 28 U.S.C. § 2244(d)(2), and the courts have held that the statute also is 3 subject to equitable tolling. See Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 4 2562-63, 177 L. Ed. 2d 130 (2010). 5 The current petition was filed on March 15, 2012, but for purposes of this 6 Report the Court assumes a constructive filing date of February 7, its signature date. From 7 the face of the petition and from judicially-noticeable materials, the Court discerns as 8 follows: 9 (a) counts of committing lewd acts on a child under 14. Pet. ¶ 2. 10 11 (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. 12 13 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. 14 His conviction therefore became final after May 5, 2010, when the high court’s 90- 15 day period for seeking such relief expired. See SUP. CT. R. 13.1. His one-year 16 AEDPA limitations period began to run on that date. 17 (d) Six months passed without any apparent court challenges by Petitioner. On 18 November 1, 2010, Petitioner filed a since-dismissed habeas petition in this Court, 19 case number CV 10-8224 PSG (RZ). Respondent soon moved to dismiss the action 20 as “mixed,” in that nearly all of Petitioner’s claims had not been exhausted in the 21 California Supreme Court prior to his filing in this Court. Petitioner filed no 22 opposition. 23 (e) On May 5, 2010, in response to the undersigned’s April 12, 2010 Report 24 recommending the exhaustion-based dismissal of the action, Petitioner filed a 25 “Motion To Dismiss” his own “Petition Without Prejudice . . . Or [for a] Stay and 26 Abeyance.” Noting that Petitioner included no argument in favor of his suggestion 27 of a stay – rather, he simply said he wanted one – the Court directed the Clerk to 28 treat his motion as a Notice Of Voluntary Dismissal pursuant to FED. R. CIV. P. 41(a) -2- 1 on May 13, 2011. The Court warned that it “makes no assurance to Petitioner that, 2 should he return to this Court, his new petition will not face challenges asserting 3 untimeliness or other shortcomings.” 4 (f) That court denied relief on January 25, 2012. 5 6 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. ***** 7 8 Unless this Court has miscalculated the limitations period, or some form of 9 additional tolling applies in sufficient measure, this action is time-barred. It became stale 10 early in May of 2011, a year after Petitioner’s conviction became final. Petitioner’s prior, 11 abortive federal-court petition did not toll the applicable one-year limitations period, unlike 12 a properly-filed state-court habeas challenge. 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 13 533 U.S. 167, 181-82, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001). 14 15 No basis appears in the petition for a later AEDPA-limitations-period starting date. Nor does the record disclose any basis for equitable tolling. 16 Petitioner believes that his current petition should be allowed to “relate back” 17 to his 2010 petition. He presaged this possibility in his voluntary dismissal motion in 2011, 18 see Mem. at 3, and he attaches a five-line Motion To Relate Back to the new petition. But 19 like the “stay and abey” aspect of his May 5, 2010 motion in the prior action, he presents 20 no argument demonstrating that his current petition properly relates back to his prior one. 21 This Court may raise sua sponte the question of the statute of limitations bar, 22 so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260 23 F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause in writing why this 24 action should not be dismissed as being barred by the one-year statute of limitations. 25 Petitioner shall file his response to the Court’s Order to Show Cause not later than 21 days 26 from the filing date of this Order. 27 28 -3- 1 2 3 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. 4 5 DATED: March 22, 2012 6 7 8 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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