Eric D Fuller v. A M Gonzalez

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 June 21, 2013,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. (ca)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ERIC D. FULLER,
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Petitioner,
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v.
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A.M. GONZALEZ,
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Respondent.
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CASE NO. CV 13-3610-JVS (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED

On May 15, 2013, Petitioner constructively filed a Petition for

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Writ of Habeas Corpus, seeking to challenge his March 2002 convictions

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for carjacking, evading arrest, and attempted assault, and resulting

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prison sentence of 24 years and four months.

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Petition, he claims that the trial court unconstitutionally made

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findings of fact to impose the upper-term sentence.

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attached memorandum at 3-8.)

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ordered to show cause why his Petition should not be dismissed because

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it is time-barred.

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(Petition at 2.)

In the

(Petition at 5;

For the following reasons, Petitioner is

State prisoners seeking to challenge their state convictions in

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federal habeas corpus proceedings are subject to a one-year statute of

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limitations.

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conviction became final on November 17, 2003, 40 days after the

28 U.S.C. § 2244(d).

Here, it appears that Petitioner’s

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California Court of Appeal affirmed his conviction on October 8,

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2003.1

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Therefore, the statute of limitations expired one year later, on

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November 17, 2004.

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Cir. 2001).

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2013, more than eight years after the deadline.

See Smith v. Duncan, 297 F.3d 809, 813 (9th Cir. 2002).

See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th

Petitioner, however, did not file this Petition until May

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IT IS THEREFORE ORDERED that, no later than June 21, 2013,

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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

May 21, 2013

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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S:\PJW\Cases-State Habeas\FULLER, E 3610\OSC dismiss pet.wpd

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Petitioner alleges that he then filed a petition for review in
the California Supreme Court. (Petition at 3.) A check of the state
appellate court website, http://appellatecases.courtinfo.ca.gov,
however, fails to show that Petitioner filed a petition for review.
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