Eddys Najera Linarez v. Warden

Filing 3

ORDER TO SHOW CAUSE RE TIMELINESS by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 6/24/2013. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDDYS LINAREZ NAJERA,

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Petitioner,

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vs.
WARDEN,
Respondent.

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CASE NO. CV 13-3761 PSG (RZ)
ORDER TO SHOW CAUSE
RE TIMELINESS

The Court issues this Order To Show Cause directed to Petitioner because the
action may be time-barred.

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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”), a portion of which established a one-year statute of limitations for bringing

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a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the

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limitations period commences on the date a petitioner’s conviction became final. See 28

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U.S.C. § 2244(d)(1). The limitations period will start instead on one of the following dates,

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whichever is latest, if any of them falls after the petitioner’s conviction becomes final: the

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date on which a State-created impediment – itself a violation of Constitutional law – was

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removed; the date on which a newly-recognized Constitutional right was established; or

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the date on which the factual predicate for the claims could have been discovered through

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the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

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The time spent in state court pursuing collateral relief in a timely manner is

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excluded, see 28 U.S.C. § 2244(d)(2), and the statute also is subject to equitable tolling.

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Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010).
The current petition was filed on May 28, 2013. From the face of the petition

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and from judicially-noticeable materials, the Court discerns as follows:

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(a)

On August 22, 2011, in Los Angeles County Superior Court, Petitioner pleaded no

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contest to several charges, including robbery. See Pet. ¶¶ 2 (convictions), 5 (no

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contest plea). He was sentenced to 29 years in prison. Pet. ¶ 2(f).

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(b)

Petitioner did not appeal. Pet. ¶ 3. His conviction became final after Friday,

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October 21, 2011, after his 60-day deadline for seeking a certificate of probable

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cause, and noticing an appeal, expired. See CAL. R. CT., Rules 8.304(b) (need for

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certificate) & 8.308 (60 day deadline). Petitioner’s one-year AEDPA limitations

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period began to run at that time.

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(c)

Over nine months passed.

On July 26, 2012, Petitioner tolled the AEDPA

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limitations period by beginning a series of unsuccessful state habeas petitions in the

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trial court, California Court of Appeal and California Supreme Court. The latter

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court denied his final state petition on November 14, 2012. See docket in In re

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Najera, Cal. Supreme Ct. case no. S205006. Petitioner’s AEDPA limitations period

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again began to run after that date, with just under three months remaining.

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(d)

Over six months later, Petitioner commenced this action.
*****

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Unless this Court has miscalculated the limitations period, or some form of

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additional tolling applies in sufficient measure, this action is time-barred. It became stale

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in February of 2013, three months after the California Supreme Court denied his final state

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habeas challenge.

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No basis appears in the petition for a later AEDPA-limitations-period starting
date. Nor does the face of the petition disclose any basis for equitable tolling.

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This Court may raise sua sponte the question of the statute of limitations bar,

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so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260

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F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause in writing why this

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action should not be dismissed as being barred by the one-year statute of limitations.

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Petitioner shall file his response to the Court’s Order to Show Cause not later than 21 days

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from the filing date of this Order.

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If Petitioner does not file a response within the time allowed, the action may
be dismissed for failure to timely file, and for failure to prosecute.
IT IS SO ORDERED.

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DATED:

June 3, 2013

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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