Jesus Beltran Olivar v. Frank X Chavez

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Jean P Rosenbluth. IT THEREFORE IS ORDERED that on or before August 16, 2013, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action with prejudice because it is untimely. Response to Order to Show Cause due by 8/16/2013. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JESUS BELTRAN OLIVAR,
Petitioner,
vs.
FRANK X. CHAVEZ, Warden,
Respondent.

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) Case No. CV 13-4112-MWF (JPR)
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) ORDER TO SHOW CAUSE
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On June 7, 2013, Petitioner, who is represented by counsel,

18 filed a federal habeas Petition under 28 U.S.C. § 2254.

Because

19 counsel did not use the required Central District of California
20 habeas form, see Local R. 83-16.1, the Court dismissed the
21 Petition with leave to amend.
22 an amended Petition.

On July 12, 2013, Petitioner filed

The Petition purports to challenge

23 Petitioner’s 2008 convictions in Los Angeles County Superior
24 Court for murder and related crimes.

(Pet. at 2.)

Although

25 Petitioner did not provide a date for the denial of his appeal
26 (Pet. at 3), the Court’s review of the California Appellate
27 Court’s Case Information website shows that the California Court
28 of Appeal denied it on October 29, 2009.
1

Counsel states that she

1 “doesn’t think” Petitioner filed a Petition for Review in the
2 California Supreme Court (id.), but in fact he did, according to
3 the appeals courts’ case-information website, and the supreme
4 court denied it on January 13, 2010.1

Petitioner states that he

5 has not filed any state habeas petitions (id.), and the Court’s
6 review of the case-information website confirms that.
7 Petitioner raises one claim in his Petition, “Inappropriate
8 Joinder of Charges Violates Defendant’s Right to Due Process
9 Under Fifth Amendment.”

(Pet. at 5.)

He also raised this claim

10 in the California Court of Appeal, or at least a state-law
11 version of it.

People v. Olivar, No. B210504, 2009 WL 3467497,

12 at *3 (Cal. Ct. App. Oct. 29, 2009).
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Under the Antiterrorism and Effective Death Penalty Act of

14 1996 (“AEDPA”), Petitioner had one year from the date his
15 conviction became final in which to file a federal habeas
16 petition.
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See 28 U.S.C. § 2244(d).
(1)

That statute provides:

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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Because counsel mistakenly represents that Petitioner did not
file a Petition for Review, she has not listed the issues he raised
in that petition. Given that Petitioner has not filed any state
habeas petitions, the Court therefore cannot know whether
Petitioner’s federal claim has in fact been exhausted in state
court. For the purposes of this Order to Show Cause the Court
assumes that it has.
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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

Court,

if

by

the

the

right

Supreme

has

been

newly

and

made

Court

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retroactively applicable to cases on collateral

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review; or

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(D)

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’s conviction apparently became final 90 days

shall

not

be

counted

toward

any

period

of

21 after the state supreme court denied review – in other words, on
22 April 13, 2010.

Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.

23 1999).
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From the face of the Petition, it does not appear that

25 Petitioner has any basis for contending that he is entitled to a
26 later trigger date under § 2244(d)(1)(B), (C), or (D).
27 Petitioner does not contend that he was impeded from filing his
28 federal petition by unconstitutional state action.
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Nor is his

1 claim based on a federal constitutional right that was initially
2 recognized by the U.S. Supreme Court subsequent to the date his
3 conviction became final and that has been made retroactively
4 applicable to cases on collateral review.

Finally, Petitioner

5 has long been aware of the underlying factual and legal
6 predicates of his claim, as he raised it on direct appeal.
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Thus, Petitioner’s last day to file his federal habeas

8 Petition was April 13, 2011, unless a basis for tolling the
9 statute exists.

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

10 (9th Cir. 2001).

Absent tolling, Petitioner’s Petition was filed

11 more than two years late.
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No basis for statutory tolling under § 2244(d)(2) appears to

13 exist here, as Petitioner apparently has not filed any state
14 habeas petitions.

Under certain circumstances, a habeas

15 petitioner may be entitled to equitable tolling.

See Holland v.

16 Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130
17 (2010).

A habeas petitioner is entitled to equitable tolling

18 only if he shows that (1) he has been pursuing his rights
19 diligently and (2) “some extraordinary circumstance stood in his
20 way.”

See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct.

21 1807, 1814, 161 L. Ed. 2d 669 (2005).

Here, Petitioner has not

22 purported to make any such showing.
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A district court has the authority to raise the statute-of-

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

Herbst v. Cook,

1 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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IT THEREFORE IS ORDERED that on or before August 16, 2013,

3 Petitioner show cause in writing, if he has any, why the Court
4 should not dismiss this action with prejudice because it is
5 untimely.

If Petitioner intends to rely on the equitable-tolling

6 doctrine, he will need to include with his response to the Order
7 to Show Cause a declaration under penalty of perjury stating
8 facts showing that (1) he has been pursuing his rights diligently
9 and (2) “some extraordinary circumstance stood in his way.”

He

10 may submit any other evidence he deems appropriate to support his
11 claim to tolling.
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13 DATED: July 19, 2013
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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