Darryl Lavail Williams v. L. Eldridge

Filing 6

ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS UNTIMELY by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 1/29/2015. (Attachments: # 1 Notice of Dismissal Form) (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-00209-DSF (KK)

Title:

Darryl Lavail Williams v. L. Eldridge

DOCKET ENTRY:

Date: January 15, 2015
Page 1 of 5

ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT
BE DISMISSED AS UNTIMELY

PRESENT:
HONORABLE KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Deb Taylor
Deputy Clerk

None
Court Reporter/Recorder

ATTORNEYS PRESENT FOR PETITIONER:

None Present

None
Tape No.

ATTORNEYS PRESENT FOR RESPONDENT:

None Present

PROCEEDINGS: (IN CHAMBERS)
On January 5, 2015,1 Darryl Lavail Williams (“Petitioner”), a California state prisoner
proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in
State Custody (the “Petition”) pursuant to 28 U.S.C. § 2254. However, the Petition appears
to be untimely on its face.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which effected
amendments to the federal habeas statutes, applies to the instant Petition because Petitioner

1

Under the “mailbox rule,” a pleading filed by a pro se prisoner is deemed to be filed
as of the date the prisoner delivered it to prison authorities for mailing, not the date on which
the pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270,
108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th
Cir. 2000). Here, the Court has calculated the filing date of the Petition pursuant to the
mailbox rule because the Petition was signed on January 5, 2015. (See Petition at 17) (The
Court refers to the pages of the Petition as if they were consecutively paginated.).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-00209-DSF (KK)

Title:

Date: January 15, 2015
Page 2 of 5

Darryl Lavail Williams v. L. Eldridge

filed it after AEDPA’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320,
336, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). The AEDPA altered federal habeas
litigation by imposing a specific time limit on the filing of federal habeas petitions. Calderon
v. United States District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997), overruled in
part on other grounds, Calderon v. United States District Court (Kelly V), 163 F.3d 530, 540
(9th Cir. 1998). By creating the AEDPA limitations period, Congress intended to “‘halt the
unacceptable delay which ha[d] developed in the federal habeas process.’” Calderon v.
United States District Court (Kelly III), 127 F.3d 782, 785 (9th Cir. 1997) (citation omitted),
overruled in part on other grounds, Kelly V, 163 F.3d at 540.
Under 28 U.S.C. § 2244(d)(1), as amended, state prisoners have only one year in
which to file their federal habeas petitions. The one-year limitations period prescribed by 28
U.S.C. § 2244(d)(1) begins to run from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). The applicable limitations period here is that set forth in 28
U.S.C. § 2244(d)(1)(A).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-00209-DSF (KK)

Title:

Date: January 15, 2015
Page 3 of 5

Darryl Lavail Williams v. L. Eldridge

As indicated above, a petitioner ordinarily has one year from the date that his
conviction becomes final to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). A case
becomes final with “the conclusion of direct review or the expiration of the time for seeking
such review.” Id.
In this case, the California Court of Appeal affirmed Petitioner’s convictions in a
reasoned decision on direct appeal on February 15, 2006. The California Supreme Court
denied review of the California Court of Appeal’s decision on April 26, 2006. The U.S.
Supreme Court denied Petitioner’s subsequent petition for a writ of certiorari on October 2,
2006. Petition’s conviction therefore became “final” on October 2, 2006. See Clay v. United
States, 537 U.S. 522, 527, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003). Thus, under 28 U.S.C.
§ 2244(d)(1), the limitations period began to run the next day on October 3, 2006 and expired
one year later, on October 2, 2007. The instant Petition was not constructively filed until
January 5, 2015. Therefore, the instant Petition is untimely by over seven years, absent
tolling.
The AEDPA provides a statutory tolling provision that suspends the limitations period
for the time during which a “properly filed” application for post-conviction or other collateral
review is “pending” in state court. 28 U.S.C. § 2244(d)(2); Bonner v. Carey, 425 F.3d 1145,
1148 (9th Cir. 2005). However, the Supreme Court has explained that if a state habeas
petition is not timely filed under the applicable state law, it is not “properly filed” and will
not toll the AEDPA limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417, 125
S. Ct. 1807, 161 L. Ed. 2d 669 (2005). On collateral review, “intervals between a lower
court decision and a filing of a new petition in a higher court,” when reasonable, fall “within
the scope of the statutory word ‘pending,’” thus tolling the limitations period. Carey v.
Saffold, 536 U.S. 214, 223, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002).
Here, Petitioner appears to have filed four state petitions for post-conviction relief:
(1) a petition in the California Supreme Court on February 23, 2007, which was denied on
October 10, 2007; (2) a petition in the Los Angeles County Superior Court on an unspecified
date in 2013, which was denied on April 12, 2013; (3) a petition in the California Court of
Appeal on August 5, 2013, which was denied on August 7, 2013; and (4) a petition in the

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-00209-DSF (KK)

Title:

Date: January 15, 2015
Page 4 of 5

Darryl Lavail Williams v. L. Eldridge

California Supreme Court on December 5, 2013, which was denied on February 11, 2014.
Assuming these petitions were properly filed and that Petitioner is therefore entitled to
statutory tolling for the pendency of these petitions, the instant Petition is still untimely by
several years. Furthermore, the latter three petitions filed in 2013 cannot be a basis for
statutory tolling because the statute of limitations would have expired prior to the filing of
these three petitions. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (state habeas
petition did not toll the period of limitations “because the limitations period had already
run”). Petitioner is further advised that he bears the burden of proof to demonstrate that he
is entitled to statutory tolling. See, e.g., Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010)
(“[The petitioner] bears the burden of proving that the statute of limitations was tolled.”).
In addition to statutory tolling, the AEDPA limitations period may also be subject to
equitable tolling if the Petitioner can demonstrate both: (1) that he has diligently pursued his
rights; and (2) that some extraordinary circumstance stood in his way. See Holland v.
Florida, 560 U.S.631, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010). There are no
allegations in the Petition suggesting Petitioner is entitled to equitable tolling. Petitioner is
advised that he bears the burden of proof to demonstrate that he is entitled to equitable
tolling. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (holding that habeas
petitioners have the burden of proof to show equitable tolling).
As such, based upon the Petition as currently submitted, 28 U.S.C. § 2244(d)(1)
appears to bar this action. Petitioner is therefore ORDERED TO SHOW CAUSE, within
fourteen (14) days of the date of this Order, why this action should not be dismissed
pursuant to the AEDPA one-year period of limitation. Petitioner is advised to inform the
Court of any reason that he may be entitled to statutory or equitable tolling.
Instead of filing a response to the instant Order, Petitioner may request a
voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a).
A Notice of Dismissal form is attached for Petitioner’s convenience. However,
Petitioner is advised that any dismissed claims may be later subject to the statute of
limitations under 28 U.S.C. § 2244(d)(1), as amended by the AEDPA, “[a] 1-year period
of limitation shall apply to an application for a writ of habeas corpus by a person in

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-00209-DSF (KK)

Title:

Date: January 15, 2015
Page 5 of 5

Darryl Lavail Williams v. L. Eldridge

custody pursuant to the judgment of a State court.”
Petitioner is expressly warned that failure to timely file a response to this Order
will result in a recommendation that this action be dismissed with prejudice for his
failure to comply with Court orders and failure to prosecute. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Petitioner at his current
address of record.