Zevonzell E. Sims v. W. L. Mongomery

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. Response to Order to Show Cause due by 8/28/2015. (twdb)

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July 31, 2015

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Petitioner on 7-31-15 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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ZEVONZELL E. SIMS,

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Petitioner,

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v.

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W.L. MONTGOMERY, Warden,
Respondent.

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) No. CV 15-5484-DOC (DFM)
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) ORDER TO SHOW CAUSE
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On July 20, 2015, Petitioner Zevonzell Sims (“Petitioner”) filed a

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Petition for Writ of Habeas Corpus by a Person in State Custody in this Court.

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Dkt. 1 (“Petition”). The petition seeks relief from a sentence imposed after a

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jury convicted Petitioner in 1995 of murder, attempted murder with use of a

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firearm, and shooting at an occupied vehicle. Id. at 2.1 Petitioner was

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sentenced to 18 years to life in state prison. Id.

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A.

The Petition Is Facially Untimely

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In 1996, Congress enacted the Antiterrorism and Effective Death

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Penalty Act (“AEDPA”), a portion of which established a one-year statute of

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All page citations are to the CM/ECF pagination.

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limitations for bringing a habeas corpus petition in federal court. 28 U.S.C. §

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2244(d). In most cases, the limitations period commences on the date a

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petitioner’s conviction became final. See 28 U.S.C. § 2244(d)(1). However, for

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convictions that became final before AEDPA took effect, such as Petitioner’s,

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the limitation period begins with AEDPA’s effective date of April 24, 1996.

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Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Accordingly, Petitioner

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had until April 24, 1997 to file a timely habeas petition in this Court. However,

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Petitioner did not file the instant action until July 20, 2015, more than 18 years

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too late.
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 1995. 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 Any Statutory or

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Equitable Tolling

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Thus, unless a basis for tolling the statute existed, Petitioner’s last day to

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file his federal habeas petition was April 24, 1997, more than 18 years ago. See
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Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). No basis for

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statutory tolling under § 2244(d)(2) appears to exist here. The only state

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collateral challenges filed by Petitioner subsequent to the date his judgment of

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conviction became final are habeas petitions that Petitioner filed in the

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California state courts in 2014. See Petition at 2-3, 54, 56, 69. It does not

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appear that Petitioner would be entitled to statutory tolling for any of those

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state habeas petitions because they were not filed until approximately 17 years

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after Petitioner’s federal filing deadline had already lapsed.2 See, e.g., Ferguson

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v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that § 2244(d) “does

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not permit the reinitiation of the limitations period that has ended before the

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state petition was filed,” even if the state petition was timely filed); Jimenez v.

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Rice, 276 F.3d 478, 482 (9th Cir. 2001); Wixom v. Washington, 264 F.3d 894,

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898-99 (9th Cir. 2001).
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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C.

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

sua sponte when untimeliness is obvious on the face of the petition and to
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It appears that Petitioner also filed a petition for writ of certiorari in the
United States Supreme Court. See Petition at 7. However, this petition does
not toll the one-year statute of limitations because it was filed long after the
deadline had already elapsed.
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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 August 28, 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: July 31, 2015
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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