Emmett Johnson v. U.S. Court of Appeals for the Ninth Circuit

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 11/9/2013. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EMMETT JOHNSON,

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Petitioner,

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vs.
U.S. COURT OF APPEALS FOR THE
NINTH CIRCUIT,
Respondent.

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CASE NO. CV 13-7464 JVS (RZ)
ORDER TO SHOW CAUSE

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The Court issues this Order To Show Cause directed to Petitioner because the

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face of the petition suggests that his challenge to his 1995 conviction may be time-barred.

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(Petitioner also fails to use this district’s required petition form, see CIV. L.R. 83-16.1, and

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to name the proper respondent, namely his prison’s warden. The Court need not address

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those shortcomings at this time, however.)

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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).

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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. 631, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010).

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Petitioner indicates that he signed the current petition on September 11, 2013.

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

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as follows:

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(a)

On April 2, 1995, a Los Angeles County Superior Court jury convicted Petitioner

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of murder and other crimes. He was sentenced to state prison for life without the

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possibility of parole. Pet. at 2.

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(b)

The California Court of Appeal affirmed, and on March11, 1998, the California

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Supreme Court denied further direct review. See docket in People v. Gilbert, No.

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S066808 (Cal. Supreme Ct.), available online at http://appellatecases.

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courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1798546&doc_no=S0

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66808.

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(c)

Petitioner does not appear to have sought certiorari in the United States Supreme

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Court. His conviction therefore became final in mid-June of 1998, after the high

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court’s 90-day deadline for seeking certiorari expired. See SUP. CT. R. 13.1. His

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one-year limitations period began to run on that date.

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(d)

Eleven and a half years passed. In December of 2009, Petitioner began a series of

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four habeas actions in the same intermediate state appellate court that upheld his

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conviction, which rejected relief in all four cases. The final such rejection occurred

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on January 30, 2012. See dockets in Cal. Ct. Appeal case nos. B221183, B229557,

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B232890 and B238746.

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(e)

Nearly nineteen more months passed before Petitioner signed the current habeas
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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in mid-June of 1999, one year after his conviction became final.

Petitioner’s

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commencement of state habeas proceedings thereafter cannot rejuvenate his stale claims.

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See Green v. 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:

October 10, 2013

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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