Tyrone Sharp v. Warden

Filing 2

ORDER TO SHOW CAUSE RE UNTIMELINESS by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 11/18/2014. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TYRONE SHARP,

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Petitioner,
vs.
ASHMALILI-GERST, Acting Judge,
Respondent.

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CASE NO. CV 14-8311 PA (RZ)
ORDER TO SHOW CAUSE RE
UNTIMELINESS

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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 the action may be time-barred. (The petition includes two

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additional shortcomings, but because Petitioner almost certainly can cure them easily by

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amendment, they are not the subjects of this order. The first of these further problems is

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that Petitioner has not signed the petition as the law requires. 28 U.S.C. § 2242; see also

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FED. R. CIV. P. 11(a) (requiring courts to strike unsigned pleadings if not corrected

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promptly after notice). Second, Petitioner fails to name the proper Respondent, namely the

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warden or other person in charge of his place of confinement. 28 U.S.C. § 2242; Rule 2(a),

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Rules Governing Section 2254 Cases in the United States District Courts; Rumsfeld v.

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Padilla, 542 U.S. 426 (2004).)

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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. 631, 648 (2010).

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Petitioner indicates that he signed the proof of service for the current petition

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on October 20, 2014. (As noted above, the petition itself is unsigned.) From the face of

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

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(a)

On March 28, 2007 in Los Angeles County Superior Court, Petitioner pleaded guilty

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to drug trafficking and apparently admitted that he had suffered a prior felony

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conviction. On August 24, 2007, he was sentenced to 20 years in prison. See Pet.

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¶ 2. (The Court assumes that the criminal judgment, including the conviction and

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sentence, was entered on August 24, 2007.)

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(b)

Petitioner successfully sought to appeal, but the California Court of Appeal affirmed

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on June 24, 2008.

See People v. Sharp, No. B203244, 2008 WL 2501878

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(Cal.Ct.App. 2d Dist. 2008). Petitioner’s direct review appears to have ended there.

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That court’s docket reflects no petitions either (1) for further direct review in the

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California Supreme Court or (2) for certiorari. His conviction therefore became

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final after September 23, 2008, the day after the expiration of the United States

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Supreme Court’s 90-day deadline for seeking certiorari. See SUP. CT. R. 13.1.

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Petitioner’s one-year AEDPA limitations period began to run on that date.

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(c)

September 24, 2009.

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One year passed. The limitations period appears to have expired after Thursday,

(d)

Nearly seven months passed. On April 16, 2010, Petitioner filed the first of a series

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of four unsuccessful (and non-hierarchical) state habeas petitions in the California

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Supreme Court and California Court of Appeal. See dockets in Cal. Supreme Ct.

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case nos. S181964 (filed Apr. 16, 2010 and denied Oct. 27, 2010), S219959 (filed

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July 16, 2014 and denied Sept. 24, 2014); Cal.Ct.App. case nos. B250096 (filed

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July 23, 2013 and denied July 30, 2013), B256497 (filed May 27, 2014 and denied

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June 6, 2014). The state supreme court denied the last of these petitions on
September 24, 2014.

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(e)

About four weeks later, Petitioner signed the current petition.
*****

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Unless this Court has miscalculated or some form of additional tolling applies

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in sufficient measure, this action became stale after September 24, 2009, one year after

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Petitioner’s conviction became final. His commencement of state habeas proceedings

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thereafter cannot rejuvenate his stale claims. See Green v. White, 223 F.3d 1001, 1003 (9th

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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 21 days

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from the filing date of this Order. If Petitioner does not file a response within the time

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allowed, the action may be dismissed for failure to timely file, and for failure to prosecute.

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IT IS SO ORDERED.

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DATED:

October 28, 2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE
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