Jose I Bonilla v. Dalinda Harman

Filing 6

ORDER TO SHOW CAUSE RE: DISMISSAL FOR UNTIMELINESS by Magistrate Judge Margaret A. Nagle. Response to Order to Show Cause due by 2/21/2013. (ec)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15

JOSE I. BONILLA,

) NO. CV 12-10635-JAK (MAN)
)
Petitioner,
)
)
v.
) ORDER TO SHOW CAUSE RE:
) DISMISSAL FOR UNTIMELINESS
DALINDA HARMAN, CHIEF, CBU,
)
)
Respondent.
)
___________________________________)

16
17
18

Petitioner, a California state prisoner, filed a habeas petition

19

pursuant

20

Petitioner alleges that:

21

of several felonies, including corporal injury to a cohabitant, assault,

22

and dissuading a witness; and on April 22, 2009, he was sentenced to six

23

years in state prison.

24

that:

25

affirmed the judgment on April 25, 2011, and the California Supreme

26

Court denied review on July 13, 2011; and he has not sought state habeas

27

relief.

28

to

28

U.S.C.

§

2254

on

December

12,

2012

(“Petition”).

on January 7, 2009, he was convicted by a jury

(Petition at 2.)

Petitioner further alleges

he appealed his conviction; the California Court of Appeal

(Petition at 2-3.)

1

The

Petition

alleges

five

claims

attacking

the

validity

of

2

Petitioner’s 2009 state court conviction.

Petitioner alleges that he

3

raised Grounds One and Two in his state appeal, but that Grounds Three

4

through Five have not been presented to any state court.1

5
6

A

review

of

the

California

Department

of

Corrections

&

7

Rehabilitation (“CDCR”) website, Inmate Locator function, confirms that

8

Petitioner -- although presently incarcerated at a facility in Arizona

9

-- remains within the custody of the CDCR.

Such review also confirms

10

that Petitioner has named an appropriate Respondent, namely, the Chief

11

of the CDCR’s Contract Beds Unit, the CDCR unit that oversees the

12

transfer of California inmates to other states to relieve overcrowding

13

in California prisons.

14
15

The Petition bears a November 29, 2012 signature date and contains

16

a proof of service form, signed under penalty of perjury, stating that

17

the Petition was mailed on that date.

18

Petition was sent to the Court is postmarked December 3, 2012, and the

19

Clerk’s Office received and lodged the Petition on December 7, 2012.

20

Pursuant to the “mailbox rule,” the Court will deem the Petition to have

The envelope in which the

21
22
23
24
1

25
26
27
28

Pursuant to Rule 201 of the Federal Rules of Evidence, the
Court has taken judicial notice of the official dockets of the
California Court of Appeal and the California Supreme Court available
electronically at http://appellatecases.courtinfo.ca.gov. Those dockets
confirm the Petition’s allegations regarding the dates on which the
state courts acted in connection with Petitioner’s appeal and that
Petitioner has not sought state habeas relief in either the California
Court of Appeal or the California Supreme Court.
2

1

been “filed” on November 29, 2012.2

2
3

DISMISSAL APPEARS WARRANTED DUE TO UNTIMELINESS

4
5

Petitioner admits that the Petition contains three unexhausted

6

claims.

(Petition at 6.)

7

“mixed” federal habeas petition generally must be dismissed, dismissal

8

can be avoided if a petitioner exercises one of the options available to

9

him,

such

as

voluntarily

Thus, the Petition is “mixed.”

dismissing

the

unexhausted

While a

claims

and

10

proceeding on the exhausted claims, or seeking a stay of the federal

11

action while he pursues exhaustion.

12

Petitioner would be entitled to exercise one of his available options in

13

the light of the “mixed” nature of the Petition.

14

would be inappropriate and unwarranted if this action is untimely.

15

the reasons set forth below, it is plain that the Petition is untimely.

If this action were to proceed,

However, doing so
For

16
17

The Accrual And Running Of Petitioner’s Limitations Period:

18
19

The one-year limitations period that governs the Petition is set

20

forth in 28 U.S.C. § 2244(d)(1).

The California Supreme Court denied

21

review on July 13, 2011, and there is no evidence that Petitioner sought

22

a writ of certiorari in the United States Supreme Court.

23

Petitioner’s state conviction became “final” 90 days later, i.e., on

Accordingly,

24
25
26
27
28

2

“Under the ‘mailbox rule,’ a pro se prisoner’s filing of a
state habeas petition is deemed filed at the moment the prisoner
delivers it to prison authorities for forwarding to the clerk of the
court.”
Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003);
Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); see also Rule
3(d) of the Rules Governing Section 2254 Cases in the United States
District Courts.
3

1

October 11, 2011.

See 28 U.S.C. § 2244(d)(1)(A); Zepeda v. Walker, 581

2

F.3d 1013, 1016 (9th Cir. 2009).

3

October 11, 2012, to file a timely federal habeas petition.

4

instant Petition was not “filed” until November 29, 2012, it was

5

untimely, absent an application of tolling sufficient to render it

6

timely.

Therefore, Petitioner had until
As the

7
8

Statutory Tolling:

9
10

28 U.S.C. § 2244(d)(2) suspends the limitations period for the time

11

during which a “properly-filed” application for post-conviction or other

12

collateral review is “pending” in state court.

13

appropriate circumstances, applications for state post-conviction relief

14

filed in an upward progression may be deemed “pending” under Section

15

2244(d)(2) “even during the intervals between the denial of a petition

16

by one court and the filing of a new petition at the next level, if

17

there is not undue delay.”

18

Cir. 2003); see also Carey v. Saffold, 536 U.S. 214, 217-25, 122 S. Ct.

19

2134, 2137-41 (2002)(for purposes of California’s “original” habeas

20

petition system, “pending” covers the time between the denial of a

21

petition in a lower court and the filing, “within a reasonable time,” of

22

a “further original state habeas petition in a higher court”).

Additionally, in

Biggs v. Terhune, 339 F.3d 1045, 1046 (9th

23
24

Petitioner

has

not

sought

state

post-conviction

relief.

25

Accordingly, he may not receive Section 2244(d)(2) statutory tolling,

26

and his limitations period commenced following the finality of his

27

appeal and expired over a month and a half before he signed and mailed

28

the instant Petition.
4

1

Equitable Tolling:

2
3

The Supreme Court has made clear that the one-year limitations

4

period established by Section 2244(d)(1) may be equitably tolled in

5

appropriate circumstances. Holland v. Florida, ___ U.S. ___, 130 S. Ct.

6

2549, 2560-62 (2010).

7

doctrine is the exception rather than the norm.

8

Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)(characterizing

9

the Ninth Circuit’s “application of the doctrine” as “sparing” and a
Miles

v.

However, application of the equitable tolling

Prunty,

187

F.3d

See, e.g., Waldron-

10

“rarity”);

1104,

1107

(9th

Cir.

11

1999)(“equitable tolling is unavailable in most cases”).

12

threshold necessary to trigger equitable tolling is very high, lest the

13

exceptions swallow the rule.”

14

(9th Cir. 2002)(internal quotation marks and citation omitted); see also

15

Lakey, 633 F.3d at 786 (noting the “necessity” of a “high threshold” for

16

application of the equitable tolling doctrine).

“Indeed, the

Miranda v. Castro, 292 F.3d 1063, 1066

17
18

As the Supreme Court has explained, a habeas petitioner may receive

19

equitable tolling only if he “shows ‘(1) that he has been pursuing his

20

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

21

his way’ and prevented timely filing.”

22

(citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 and

23

n.8, 125 S. Ct. 1807, 1814 and n.8 (2005).

24

Id. at 418, 125 S. Ct. at 1814-15 (finding that the petitioner was not

25

entitled to equitable tolling, because he had not established the

26

requisite diligence).

27

bears the burden of showing that it should apply to him.

28

Lawrence

v.

Florida,

Holland, 130 S. Ct. at 2562

Both elements must be met.

A petitioner seeking application of the doctrine

549

U.S.

327,
5

336,

127

S.

Id.; see also

Ct.

1079,

1085

1

(2007)(observing that, to receive equitable tolling, the petitioner must

2

prove the above two requirements).

3
4

Petitioner has not alleged any basis for applying the equitable

5

tolling doctrine, and none is apparent.

The first two claims of the

6

Petition were fully briefed by appellate counsel as of early 2011, at

7

the latest, and could have been raised in a federal habeas petition as

8

of July 2011.

9

Three and Four are based on information that should and/or could have

The ineffective assistance claims alleged in Grounds

10

been known to Petitioner some time ago.

The “actual innocence” claim

11

alleged in Ground Five is based on facts known to plaintiff at the time

12

of his trial.

13

federal habeas relief.

14

rendered the Petition untimely.

Thus, it is unclear why Petitioner delayed in seeking
It is clear, however, that his delay has

15
16

District courts are permitted to consider, sua sponte, whether a

17

petition is untimely and to dismiss a petition that is untimely on its

18

face after providing the petitioner with the opportunity to be heard.

19

Day v. McDonough, 547 U.S. 198, 209, 126 S. Ct. 1675, 1684 (2006);

20

Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012).

21

Petitioner is ORDERED TO SHOW CAUSE why this action should not be

22

dismissed on the ground of untimeliness.

23

2013, Petitioner shall file a response to this Order To Show Cause.

24

Petitioner concedes that this action is untimely, he shall state this

25

concession

26

untimely, he must explain clearly and in detail why it is not untimely,

27

and provide any available competent evidence that establishes the

28

timeliness of this action.

clearly.

If

Petitioner

6

Accordingly,

By no later than February 21,

disputes

that

this

action

If

is

1

Petitioner is explicitly cautioned that his failure to comply with

2

this Order will be deemed to constitute a concession that this action is

3

untimely and may be dismissed on that ground.

4
5

IT IS SO ORDERED.

6
7

DATED: January 17, 2013.

8
9
10

______________________________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7