Theodore John Nelson v. Warden

Filing 4

ORDER TO SHOW CAUSE why this action should not be dismissed as being barred by the one-year statute of limitations by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 3/20/2015. (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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THEODORE JOHN NELSON,

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Petitioner,

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vs.
F.S.P. Warden,

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Respondent.

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CASE NO. CV 15-1072 RGK (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 2011 conviction 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).

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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 (2010).

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Petitioner indicates that he signed the current petition on February 3, 2015.

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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 Wednesday, February 9, 2011, Petitioner entered a no contest plea to cohabitant

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battery charges in Los Angeles County Superior Court. He was sentenced that day

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to 12 years in prison. Pet. ¶ 2.

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(b)

Petitioner did not appeal. Pet. ¶ 3. The judgment became final after Monday,

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April 11, 2011, after his 60-day deadline for seeking a certificate of probable cause,

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and noticing an appeal, expired. See CAL. R. CT., Rules 8.304(b) (need for

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certificate) & 8.308 (60-day deadline). His one-year AEDPA limitations period

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began running at that time.

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(c)

One year passed, during which Petitioner had no pending state-court challenges to

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his conviction or sentence. His limitations period thus appears to have expired after

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Wednesday, April 11, 2012.

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(d)

Two more years passed. In “April 2014,” Petitioner filed the first of three

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hierarchical state habeas petitions, in the trial court. That court denied relief, as did

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the California Court of Appeal and California Supreme Court. The state high court

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denied his final petition on November 12, 2014. Pet. ¶¶ 6(a)-(c).

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(e)

Over two months later, 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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in April of 2012, one year after his conviction became final. Petitioner’s commencement

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of state habeas proceedings thereafter did not 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: February 18, 2015

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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