Rogelio Martinez v. Cynthia Tampkins

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. Response to Order to Show Cause due by 4/20/2015. See Order for more information. (twdb)

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April 20, 2015

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Petitioner on April 20, 2015, by TS

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ROGELIO MARTINEZ,

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Petitioner,

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v.

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CYNTHIA TAMPKINS, Warden,
Respondent.

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) No. CV 15-2708-JLS (DFM)
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) ORDER TO SHOW CAUSE
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On April 13, 2015, Petitioner Rogelio Martinez filed a Petition for Writ

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of Habeas Corpus by a Person in State Custody (“Petition”) in this Court. On

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October 17, 2011, Petitioner was convicted by a Los Angeles County Superior

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Court jury of two counts of making criminal threats, one count of dissuading a

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witness by force or threat of force or violence, one count of misdemeanor

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cruelty to a child by inflicting injury, one count of child abuse, and one count

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of misdemeanor battery. Petition at 2.1 On November 30, 2011, Petitioner was

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sentenced to 19 years in state prison. Id.

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All citations to the Petition are to the CM/ECF pagination.

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A.

The Petition Is Facially Untimely

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Under the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), a one-year limitations period applies to a federal petition for writ

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of habeas corpus filed by a person in state custody. See 28 U.S.C. § 2244(d)(1).

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The limitations period runs from the latest of four alternative accrual dates. See

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28 U.S.C. § 2244(d)(1)(A)-(D). In most cases, including this one, the

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limitations period begins running from “the date on which the judgment

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became final by the conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

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Here, the California Supreme Court denied Petitioner’s petition for

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review on August 28, 2013. Petitioner does not appear to have filed a petition

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for writ of certiorari in the Supreme Court. Therefore, his conviction became

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final 90 days later, on November 26, 2013. See Bowen v. Roe, 188 F.3d 1157,

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1158-59 (9th Cir. 1999). Petitioner then had one year from the date his

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judgment became final on November 26, 2013, until November 26, 2014, to

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timely file a habeas corpus petition in this Court. See Patterson v. Stewart, 251

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F.3d 1243, 1247 (9th Cir. 2001). However, Petitioner did not file the instant

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action until April 13, 2015, more than four months too late.

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From the face of the Petition, it does not appear that Petitioner has any

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basis for contending that he is entitled to a later trigger date under §

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2244(d)(1)(B). Nor does it appear that Petitioner has any basis for contending

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that he is entitled to a later trigger date under § 2244(d)(1)(C) because none of

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the claims alleged in the Petition appear to be based on a federal constitutional

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right that was initially recognized by the United States Supreme Court

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subsequent to the date his conviction became final and that has been made

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retroactively applicable to cases on collateral review. Finally, it does not

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appear that Petitioner has any basis for contending that he is entitled to a later

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trigger date under § 2244(d)(1)(D) because it appears from the face of the
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Petition that Petitioner was aware of the factual predicate of all his claims at

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the time of his trial in 2011. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th

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Cir. 2001) (statute of limitations begins to run when a prisoner “knows (or

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through diligence could discover) the important facts, not when the prisoner

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recognizes their legal significance”).

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B.

It Does Not Appear that Petitioner Is Entitled to Sufficient Statutory

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Tolling to Make the Petition Timely

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Under AEDPA, “[t]he time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending shall not be counted toward any period of

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limitation under this subsection.” 28 U.S.C. § 2244(d)(2). The entire period of

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time for a full round of collateral review, from the filing of a first state habeas

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petition to the time the last state habeas petition is denied, may be deemed

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“pending” and tolled, so long as the state petitioner proceeds in a hierarchical

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order from one lower state court to a higher state court. See Carey v. Saffold,

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536 U.S. 214, 223 (2002). This includes so-called “gap tolling” for the periods

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of time between such state habeas petitions. Id.

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As noted above, Petitioner’s conviction became final on November 26,

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2013. Petitioner filed his first state habeas petition in the California Supreme

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Court on September 11, 2014. See Petition at 3. Petitioner is not entitled to any

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gap tolling for the period between the date his conviction became final on

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November 26, 2013, and the date he filed his state habeas petition in the

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California Supreme Court on September 11, 2014, because this more than

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nine-month delay is not “reasonable.” See Evans v. Chavis, 546 U.S. 189, 191-

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92 (2006); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011)

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(finding that 30- to 60-day delays in seeking habeas relief from the next highest

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state court were “reasonable” under Chavis). Therefore, as of September 11,

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2014, 289 days in the one-year limitations period had elapsed, and Petitioner
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had 76 days remaining in which to file a timely federal habeas petition.
Petitioner is entitled to statutory tolling from the date he filed his state

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habeas petition on September 11, 2014, until the California Supreme Court

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denied the petition on November 12, 2014. Therefore, as of November 12,

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2014, Petitioner had 76 days remaining in the one-year limitations period, or

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until January 27, 2015, in which to file a timely petition. However, Petitioner

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did not file his habeas petition in this Court until April 13, 2015, more than

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two months too late.

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C.

Petitioner Does Not Appear to Be Entitled to Any Equitable Tolling
The Supreme Court has held that AEDPA’s one-year limitation period is

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also subject to equitable tolling in appropriate cases. See Holland v. Florida,

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560 U.S. 605, 645 (2010). However, a habeas petitioner is entitled to equitable

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tolling only if he shows (1) that he has been pursuing his rights diligently; and

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(2) that “some extraordinary circumstance stood in his way.” See Pace v.

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DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland, 560 U.S. at 649.

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Here, Petitioner does not allege that any circumstances exist which would

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establish a right to equitable tolling.

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D.

Conclusion
A district court has the authority to raise the statute of limitations issue

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sua sponte when untimeliness is obvious on the face of the petition and to

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summarily dismiss a petition on that ground pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts, so long as

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the court “provides the petitioner with adequate notice and an opportunity to

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respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); Herbst v.

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Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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IT THEREFORE IS ORDERED that, on or before May 18, 2015,

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Petitioner show cause in writing as to why the Court should not recommend

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that this action be summarily dismissed with prejudice on the ground of

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untimeliness.

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Dated: April 20, 2015
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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