Boewrell Lenoir v. J Soto

Filing 3

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg, IT IS THEREFORE ORDERED that, on or before December 7, 2012, Petitioner shall show cause, if there be any, why the court should not recommend dismissal with prejudice of the petition based on expiration of the one-year statute of limitations. Petitioner is advised that if he fails to timely respond to this order to show cause, the court will recommend that the petition be dismissed with prejudice based on expiration of the one-year statute of limitations. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BOEWRELL LENOIR,
Petitioner,

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v.

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J. SOTO, Warden,

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Respondent.

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NO. CV 12-9432-JFW (AGR)

ORDER TO SHOW CAUSE

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On November 2, 2012, Petitioner filed a Petition for Habeas Corpus

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pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears the

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one-year statute of limitations has expired.

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The court, therefore, orders Petitioner to show cause, on or before

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December 7, 2012, why this court should not recommend dismissal of the

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petition with prejudice based on expiration of the one-year statute of limitations.

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I.

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PROCEDURAL BACKGROUND

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On December, 8, 2008, Petitioner pled no contest in Los Angeles County

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Superior Court to attempted burglary and robbery, and was sentenced to 7 years

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in prison. (Petition at 2.)

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On June 16, 2009, Petitioner filed a “Belated/Notice of Appeal” in the

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California Court of Appeal, which was denied on June 30, 2009. California

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Appellate Court Case Information online docket in Case No. B216804.1 On

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November 30, 2009, Petitioner filed a state habeas petition in the Court of

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Appeal, which was denied on December 14, 2009. Id. in Case No. B220575. On

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June 7, 2010, Petitioner filed a state habeas petition in the California Supreme

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Court, which was denied on July 13, 2011. Id. in Case No. S183301. On June

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11, 2010, Petitioner filed a second state habeas petition in the California

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Supreme Court, which was denied on July 13, 2011, with a citation to In re Miller,

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17 Cal. 2d 734, 735 (1941).2 California Appellate Court Case Information online

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docket in Case No. S183490.

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On October 23, 2012, Petitioner constructively filed the instant federal

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petition in this court in which he raises two grounds. (Petition at 5 et seq. & back

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of envelope.)

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II.

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DISCUSSION

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The petition was filed after enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Therefore, the court applies the AEDPA in

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In all of Petitioner’s California appellate filings, he represented himself.

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Miller signals that a “prior petition for a writ of habeas corpus was filed . .
. and was based on the same grounds set forth in the present petition . . . and
since that time no change in the facts or the law substantially affecting the rights
of the petitioner has been disclosed.” Id. at 735; see also Kim v. Villalobos, 799
F.2d 1317, 1319 n.1 (9th Cir. 1986).
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reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138

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L. Ed. 2d 481 (1997).

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The AEDPA contains a one-year statute of limitations for a petition for writ

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of habeas corpus filed in federal court by a person in custody pursuant to a

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judgment of a state court. 28 U.S.C. § 2244(d)(1). The one-year period starts

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running on the latest of either the date when a conviction becomes final under 28

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U.S.C. § 2244(d)(1)(A) or on a date set in § 2244(d)(1)(B)-(D).

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A.

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On June 30, 2009, the California Court of Appeal denied Petitioner’s

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petition or motion on direct review.3 California Appellate Court Case Information

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online docket in Case No. B216804. Because Petitioner did not file a petition for

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review with the California Supreme Court, his conviction became final 40 days

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later on August 10, 2009.4 See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir.

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2005). Absent tolling, the statute of limitations expired on August 10, 2010.
1.

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The Date on Which Conviction Became Final – § 2244(d)(1)(A)

Statutory Tolling

The statute of limitations is tolled during the time “a properly filed

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application for State post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

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Petitioner filed his first habeas petition in the Court of Appeal on November

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30, 2009. At that point, 112 days of the limitations period had elapsed (August

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10, 2009, to November 30, 2009). The Court of Appeal denied the petition on

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December 14, 2009. Petitioner filed his first habeas petition in the California

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Supreme Court on June 7, 2010, and both of his habeas petitions in the California

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Supreme Court were denied on July 13, 2011. As of that date, Petitioner had 253

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For the purpose of this order, the court assumes without deciding that
Petitioner is entitled to the time between his no contest plea and the disposition of
his motion/petition before the Court of Appeal.
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Forty days from June 30, 2009, is Sunday, August 9, 2009.
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days remaining in the limitations period (365-112).5 With the benefit of statutory

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tolling, the limitations period expired on March 22, 2012 (July 13, 2011 + 253

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days).

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Absent equitable tolling, the petition is time-barred.
2.

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Equitable Tolling

“[T]he timeliness provision in the federal habeas corpus statute is subject to

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equitable tolling.” Holland, 130 S. Ct. at 2554, 177 L. Ed. 2d 130 (2010). “[A]

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‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood

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in his way’ and prevented timely filing.” Id. at 2562 (quoting Pace v. DiGuglielmo,

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544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). “The diligence

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required for equitable tolling purposes is “reasonable diligence,” not “maximum

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feasible diligence.” Id. at 2565 (citations and quotation marks omitted). The

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extraordinary circumstances must have been the cause of an untimely filing.

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Pace, 544 U.S. at 418. “[E]quitable tolling is available for this reason only when

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‘“extraordinary circumstances beyond a prisoner’s control make it impossible to

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file a petition on time”’ and ‘“the extraordinary circumstances” circumstances”

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were the cause of [the prisoner’s] untimeliness.’” Bills v. Clark, 628 F.3d 1092,

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1097 (9th Cir. 2010) (citations omitted, emphasis in original).

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Petitioner does not indicate he is entitled to equitable tolling.

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B.

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The statute of limitations may start to run on “the date on which the factual

Date of Discovery – 28 U.S.C. § 2244(d)(1)(D)

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predicate of the claim or claims presented could have been discovered through

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the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The statute starts to

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run when the petitioner knows or through diligence could discover the important

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For the purpose of this order, the court assumes without deciding that
Petitioner is entitled to the 6-month gap between December 14, 2009, when the
Court of Appeal denied his habeas petition, and June 7, 2010, when he filed his
first habeas petition in the California Supreme Court.
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facts, not when the petitioner recognizes their legal significance. See Hasan v.

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Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001).

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In Ground Two, Petitioner contends his counsel was ineffective because he

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failed to give the trial court notice that he intended to appeal the no contest plea,

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“resulting in the State Court’s . . . denial of Petitioner’s request to appeal from the

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disputed no contest plea.” (Petition at 5 & attached Ground Two Supporting

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Facts Continue.) Thus, Petitioner was aware of the factual predicate underlying

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Ground Two at the latest on June 16, 2009, when he filed his motion/petition in

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the Court of Appeal. Accordingly, the date of discovery does not assist Petitioner.

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III.

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ORDER TO SHOW CAUSE

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IT IS THEREFORE ORDERED that, on or before December 7, 2012,

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Petitioner shall show cause, if there be any, why the court should not recommend

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dismissal with prejudice of the petition based on expiration of the one-year statute

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of limitations.

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Petitioner is advised that if he fails to timely respond to this order to

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show cause, the court will recommend that the petition be dismissed with

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prejudice based on expiration of the one-year statute of limitations.

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DATED: November 6, 2012

ALICIA G. ROSENBERG
United States Magistrate Judge

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