Saul Cervantes v. M D Biter

Filing 4

ORDER TO SHOW CAUSE RE UNTIMELINESS by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 8/10/2013. (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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SAUL CERVANTES,

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Petitioner,
vs.
M.D. BITER, Warden,
Respondent.

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CASE NO. CV 13-4880 R (RZ)
ORDER TO SHOW CAUSE RE
UNTIMELINESS

The Court issues this Order To Show Cause directed to Petitioner because the
face of the petition suggests that 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, 560 U.S. __, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010).

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Petitioner indicates that he signed the current petition on June 26, 2012. From

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the face of the petition and from judicially-noticeable materials, the Court discerns as

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follows:

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(a)

In May of 2003, a Los Angeles County Superior Court jury convicted Petitioner of

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multiple crimes, including three attempted murders. He was sentenced to 56 years

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to life in prison. See Pet. ¶ 2.

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(b)

The California Court of Appeal affirmed, and on March 2, 2005, the California

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Supreme Court denied further direct review. Pet. ¶¶ 3-4. Petitioner does not appear

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to have sought certiorari in the United States Supreme Court. His conviction

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therefore became final on June 1, 2005, after the high court’s 90-day deadline for

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seeking certiorari expired. See SUP. CT. R. 13.1. His one-year limitations period

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began to run on that date.

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(c)

Over eight years passed after the California Supreme Court’s denial of further direct

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review. On March 20, 2013, Petitioner filed a habeas petition in that court and filed

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another on April 11. The court denied both petitions on May 22. See dockets in

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In re Cervantes, Nos. S209466 and S209953 (Cal. Supreme Ct.).

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(d)

Over a month after these final two state-court denials, Petitioner signed the current
petition.
*****

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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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after June 1, 2006, one year after his conviction became final. Petitioner’s commencement

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of state habeas proceedings thereafter cannot rejuvenate his stale claims. See Green v.

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White, 223 F.3d 1001, 1003 (9th Cir. 2000).

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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 30 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:

7/11/13

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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