Shawn R Carter v. J. Soto

Filing 5

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 4/3/2015. (dts)

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

CV 15-02006-CAS (KK)

Title:

Shawn R. Carter v. J. Soto

DOCKET ENTRY:

Date: March 20, 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 March 9, 2015,1 Shawn R. Carter (“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 March 9, 2015. (See Petition at 10) (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 15-02006-CAS (KK)

Title:

Date: March 20, 2015
Page 2 of 5

Shawn R. Carter v. J. Soto

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 15-02006-CAS (KK)

Title:

Date: March 20, 2015
Page 3 of 5

Shawn R. Carter v. J. Soto

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 conviction in a
reasoned decision on direct appeal on September 11, 2007. On November 14, 2007, the
California Supreme Court denied review of the California Court of Appeal’s decision.
Petitioner does not appear to have filed a petition for a writ of certiorari. Petitioner’s
conviction therefore became “final” on February 11, 2008—ninety days after the California
Supreme Court’s denial of review. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.
1999) (holding that the period of direct review for the purposes of AEDPA’s limitation
period “includes the period within which a petitioner can file a petition for writ of certiorari
from the United States Supreme Court”); see also Sup. Ct. R. 13 (allowing a petition for a
writ of certiorari seeking review of a judgment of a state court of last resort to be filed within
90 days after the entry of judgment). Thus, under 28 U.S.C. § 2244(d)(1), the limitations
period began to run the next day on February 12, 2008 and expired one year later, on
February 10, 2009. The instant Petition was not constructively filed until March 9, 2015.
Therefore, the instant Petition is untimely by over six 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 two applications for post-conviction relief: (1)

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

CV 15-02006-CAS (KK)

Title:

Date: March 20, 2015
Page 4 of 5

Shawn R. Carter v. J. Soto

a petition filed in the California Court of Appeal on September 19, 2014, which was denied
on October 9, 2014; and (2) a petition filed in the California Supreme Court on November
4, 2014, which was denied on January 21, 2015. Neither of these petitions can be a basis for
statutory tolling because the statute of limitations would have expired prior to the filing of
both 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 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 15-02006-CAS (KK)

Title:

Date: March 20, 2015
Page 5 of 5

Shawn R. Carter v. J. Soto

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.