Charles J Anderson v. E. Valenzuela

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that on or before February 6, 2015, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action because it is untimely for the reas ons stated above. If Petitioner seeks to rely on the equitable-tolling doctrine, he must provide detailed factual allegations and evidentiary support, at least through his own sworn declaration, demonstrating that an "extraordinary circumstance" stood in his way and that he was reasonably diligent in trying to circumvent it. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHARLES J. ANDERSON,

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Petitioner,

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vs.
E. VALENZUELA, Warden,

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Respondent.

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) Case No. CV 15-0077-RT (JPR)
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) ORDER TO SHOW CAUSE
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On December 31, 2014, Petitioner constructively filed a

18 Petition for Writ of Habeas Corpus by a Person in State Custody.
19 The Petition challenges his 1994 25-years-to-life sentence in Los
20 Angeles County Superior Court for assault with a deadly weapon.
21 (Pet. at 2.)

Petitioner raises a single claim, that he “received

22 a sentence enhancement based on a dismissed allegation in
23 violation of Due Process Clause of the 14th Amendment” (id. at
24 5), which he apparently raised in state-court habeas petitions
25 beginning in early 2014 (Pet., Exs. at last tab).
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Under the Antiterrorism and Effective Death Penalty Act of

27 1996 (“AEDPA”), a petitioner generally has one year from the date
28 his conviction became final to file a federal habeas petition.
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1 See 28 U.S.C. § 2244(d).
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(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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(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

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retroactively applicable to cases on collateral

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review; or

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(D)

Court,

if

by

the

the

right

Supreme

has
Court

been

newly

and

made

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.

shall

not

be

counted

toward

any

period

of

28 For those whose judgment became final before AEDPA was enacted,
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1 as Petitioner’s apparently did, the limitation period runs from
2 AEDPA’s date of enactment – that is, April 24, 1996.

See Wood v.

3 Milyard, 132 S. Ct. 1826, 1831 (2012).
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5 1996.

Petitioner’s petition for review was denied on January 17,
(Pet. at 3.)

Under Wood, he thus had until April 24,

6 1997, to file his federal Petition.
7 nearly 18 years later.

He did not file it until

He apparently did not file his first

8 state habeas petition raising the same claim until sometime in
9 early 2014.

No statutory tolling is available when the first

10 state habeas petition was filed after the expiration of the
11 limitation period.

See Ferguson v. Palmateer, 321 F.3d 820, 823

12 (9th Cir. 2003) (holding that § 2244(d) “does not permit the
13 reinitiation of the limitations period that has ended before the
14 state petition was filed,” even if state petition was timely
15 filed).
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Petitioner offers no explanation or excuse for the nearly

17 20-year delay in filing his Petition, and indeed it is hard to
18 imagine one.

See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.

19 2011) (noting that equitable tolling of 20 years “would be
20 difficult to justify”).

There is nothing about Petitioner’s

21 claim that he should not have known at the time of his
22 sentencing.

It is true that in certain circumstances, a habeas

23 petitioner may be entitled to equitable tolling.
24 Florida, 560 U.S. 631, 645 (2010).

See Holland v.

But he must show that (1) he

25 has been pursuing his rights diligently and (2) “some
26 extraordinary circumstance stood in his way.”
27 DiGuglielmo, 544 U.S. 408, 418 (2005).
28 done.
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See Pace v.

This Petitioner has not

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A district court has the authority to raise the statute-of-

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

Herbst v. Cook,

7 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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IT THEREFORE IS ORDERED that on or before February 6, 2015,

9 Petitioner show cause in writing, if he has any, why the Court
10 should not dismiss this action because it is untimely for the
11 reasons stated above.

If Petitioner seeks to rely on the

12 equitable-tolling doctrine, he must provide detailed factual
13 allegations and evidentiary support, at least through his own
14 sworn declaration, demonstrating that an “extraordinary
15 circumstance” stood in his way and that he was reasonably
16 diligent in trying to circumvent it.

Further, Petitioner is

17 advised that his failure to timely and sufficiently comply with
18 this Order may result in his Petition being dismissed, for the
19 reasons stated herein and for failure to prosecute.
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21 DATED: January 9, 2015
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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