Maurice R Polk v. Tim V Virga

Filing 4

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED by Magistrate Judge Patrick J. Walsh: IT IS THEREFORE ORDERED that, no later than October 15, 2012, Petitioner shall inform the Court in writing why this case should not be dismissed with prejudice because it is barred by the statute of limitations. Failure to timely file a response will result in a recommendation that this case be dismissed. (Please review document for full and complete details) (ca)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MAURICE R. POLK,
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Petitioner,
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v.
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TIM V. VIRGA, WARDEN,
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Respondent.
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CASE NO. CV 12-7831-JVS (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED

On August 21, 2012, Petitioner constructively filed a Petition

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for Writ of Habeas Corpus, seeking to challenge his 1997 state

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conviction and sentence for second degree robbery with the use of a

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firearm.

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court’s admission of the victim’s testimony regarding the

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perpetrator’s height violated his right to a fair trial and that there

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was insufficient evidence presented at the preliminary hearing to hold

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him for trial.

(Petition at 5; attached Memorandum of Points and

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Authorities.)

For the following reasons, Petitioner is ordered to

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show cause why his Petition should not be dismissed because it is

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time-barred.

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(Petition at 2.)

In the Petition, he claims that the trial

State prisoners seeking to challenge their state convictions in
federal habeas corpus proceedings are subject to a one-year statute of

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limitations.

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appeal of his conviction or sentence, thus his conviction became final

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on March 31, 1997--60 days after he was sentenced and the time expired

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for him to file an appeal.

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(9th Cir. 2006); Lewis v. Mitchell, 173 F. Supp.2d 1057, 1060 (C.D.

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Cal. 2001).

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later, on March 31, 1998.

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1246 (9th Cir. 2001).

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August 2012, more than 14 years after the deadline.

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28 U.S.C. § 2244(d).

Here, Petitioner did not file an

See Mendoza v. Carey, 449 F.3d 1065, 1067

Therefore, the statute of limitations expired one year
See Patterson v. Stewart, 251 F.3d 1243,

Petitioner did not file this Petition until
Accordingly,

absent tolling, the Petition is untimely and must be dismissed.
IT IS THEREFORE ORDERED that, no later than October 15, 2012,

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Petitioner shall inform the Court in writing why this case should not

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be dismissed with prejudice because it is barred by the statute of

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limitations.

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recommendation that this case be dismissed.

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DATED:

Failure to timely file a response will result in a

September 13, 2012

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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S:\PJW\Cases-State Habeas\POLK, M 7831\OSC dismiss pet.wpd

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