Douglas Melvin Lehto v. Connie Gipson

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jean P Rosenbluth. (See Order for details.) IT THEREFORE IS ORDERED that on or before April 17, 2013, Petitioner show cause in writing, if he has any, why the Court should not dismiss the Petition with prejudice because it is untimely. Response to Order to Show Cause due by 4/17/2013. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DOUGLAS MELVIN LEHTO,

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Petitioner,

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vs.
CONNIE GIPSON, Warden,

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Respondent.

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) Case No. CV 13-1654-VBF (JPR)
)
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) ORDER TO SHOW CAUSE
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On February 28, 2013, Petitioner constructively filed a

18 Petition for Writ of Habeas Corpus by a Person in State Custody.
19 The Petition purports to challenge Petitioner’s 2010 conviction
20 in Los Angeles County Superior Court for elder/dependent abuse,
21 in violation of California Penal Code section 368(b)(1).
22 at 2.)

(Pet.

Petitioner raises an ineffective-assistance-of-counsel

23 claim based on his trial lawyer’s alleged bad advice to him in
24 connection with a plea offer.
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(See generally Pet. Attach.)

Under the Antiterrorism and Effective Death Penalty Act of

26 1996 (“AEDPA”), Petitioner had one year from the date his
27 conviction became final in which to file a federal habeas
28 petition.

See 28 U.S.C. § 2244(d).
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That statute provides:

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(1)

A 1-year period of limitation shall apply to an

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application for a writ of habeas corpus by a person in

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custody pursuant to the judgment of a State court.

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limitation period shall run from the latest of--

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(A)

The

the date on which the judgment became

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final by the conclusion of direct review or the

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expiration of the time for seeking such review;

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(B)

the

date

on

which

the

impediment

to

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filing an application created by State action in

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violation of the Constitution or laws of the United

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States is removed, if the applicant was prevented

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from filing by such State action;

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(C)

the

date

on

which

the

constitutional

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right asserted was initially recognized by the

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Supreme

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recognized

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retroactively applicable to cases on collateral

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review; or

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(D)

Court,

if

by

the

the

right

Supreme

has
Court

been

newly

and

made

the date on which the factual predicate

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of the claim or claims presented could have been

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discovered through the exercise of due diligence.

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(2)

The

time

during

which

a

properly

filed

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application for State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is

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pending

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limitation under this subsection.

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Petitioner states that he did not appeal his conviction.

shall

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not

be

counted

toward

any

period

of

The Court’s review of the California Appellate
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1 Courts’ Case Information website, however, reveals that
2 Petitioner actually voluntarily dismissed his appeal after it had
3 been filed.

Although Petitioner acknowledges filing only a

4 California Supreme Court habeas petition (see Pet. at 3), he
5 attached to the Petition a minute order from the Los Angeles
6 County Superior Court denying his claim on habeas review because
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[t]he facts presented do not justify the Court’s granting

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the

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attorney he was innocent. The attorney’s advice to go to

Defendant’s

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trial

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petition.

The

Defendant

told

his

counsel.

does

not

amount

to

ineffective

assistance

of

12 The minute order states that Petitioner filed his state habeas
13 petition on September 14, 2012.
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According to Petitioner, he was convicted and sentenced on

15 February 19, 2010.

(Pet. at 2.)

He voluntarily dismissed his

16 appeal on October 5, 2010, according to the California Appellate
17 Courts’ Case Information website.

His conviction therefore

18 became final 10 days later, on October 15, 2010.

See Harris v.

19 Unknown, No. CV 11-7511-PA (PJW), 2012 WL 1616426, at *2 (C.D.
20 Cal. Apr. 4) (when defendant voluntarily dismisses appeal,
21 conviction becomes final at latest 10 days later, when time for
22 filing petition for review in California Supreme Court expires),
23 accepted by 2012 WL 1615232 (C.D. Cal. May 9, 2012).

Under

24 § 2244(d), Petitioner thus had until October 14, 2011, to file
25 his federal habeas Petition.
26 year and a half later.

He did not do so until almost a

Accordingly, absent statutory or

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1 equitable tolling1 or a later trigger date under § 2244(d)(1),
2 the Petition is untimely.
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Petitioner is clearly not entitled to any kind of statutory

4 tolling under § 2244(d)(2) because he did not file his first
5 habeas petition, in the superior court, until the AEDPA
6 limitations period had already expired.

See Ferguson v.

7 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that AEDPA
8 limitation period cannot be “reinitiated” if it ended before
9 state habeas petition filed).

Petitioner seems to contend that

10 he is entitled to a later trigger date or equitable tolling
11 because he could not have known of his claim until the U.S.
12 Supreme Court’s “watershed” ruling in Lafler v. Cooper, 566 U.S.
13 __, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).

(Pet. Attach.)

14 But the Ninth Circuit has already held that Lafler did not
15 announce a new rule.

See Buenrostro v. United States, 697 F.3d

16 1137, 1140 (9th Cir. 2012); Baker v. Ryan, No. 10-16716, __ F.
17 App’x __, 2012 WL 5853777, at *2 (9th Cir. Nov. 16, 2012); Hunt
18 v. Gibson, No. SA CV 12-1859-RGK (VBK), 2013 WL 990761, at *3
19 (C.D. Cal. Feb. 5, 2013) (applying Buenrostro in § 2244(d)
20 context and finding petition untimely).

Indeed, had the law not

21 already been “clearly established,” the Supreme Court could not
22 have granted relief in Lafler.

See 28 U.S.C. § 2254(d)(1).

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Under certain circumstances, a habeas petitioner may be
entitled to equitable tolling. See Holland v. Florida, 560 U.S.
__, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 (2010). A habeas
petitioner is entitled to equitable tolling only if he shows that
(1) he has been pursuing his rights diligently and (2) “some
extraordinary circumstance stood in his way.”
See Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed.
2d 669 (2005).
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A district court has the authority to raise the statute of

2 limitations issue sua sponte when untimeliness is obvious on the
3 face of a petition; it may summarily dismiss the petition on that
4 ground pursuant to Rule 4 of the Rules Governing § 2254 Cases in
5 the U.S. District Courts, as long as the court gives petitioner
6 adequate notice and an opportunity to respond.

Herbst v. Cook,

7 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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IT THEREFORE IS ORDERED that on or before April 17, 2013,

9 Petitioner show cause in writing, if he has any, why the Court
10 should not dismiss the Petition with prejudice because it is
11 untimely.

If Petitioner intends to rely on the equitable tolling

12 doctrine, he must include with his response to this Order to Show
13 Cause a declaration under penalty of perjury stating facts
14 demonstrating that he could not have earlier filed his Petition
15 through the exercise of reasonable diligence.

Moreover, he must

16 explain what “extraordinary circumstance” stood in the way of his
17 earlier filing the Petition.
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19 DATED: March 21, 2013
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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