Gregory Joseph House v. California Institution for Men

Filing 3

ORDER TO SHOW CAUSE by Magistrate Judge Karen E. Scott. IT IS THEREFORE ORDERED that, on or before July 26, 2017, Petitioner show cause in writing, if any he has, why the Court should not recommend that this action be dismissed with prejudice on the ground of untimeliness. (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GREGORY JOSEPH HOUSE,

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Case No. 2:17-cv-04584-VBF-KES

Petitioner,
ORDER TO SHOW CAUSE

v.
CALIFORNIA INSTITUTION FOR
MEN,
Respondent.

On June 15, 2017, Petitioner Gregory Joseph House (“Petitioner”)
constructively filed a Petition for Writ of Habeas Corpus by a Person in State
Custody pursuant to 28 U.S.C. § 2254. (“Petition”) (Dkt. 1.) As discussed more
fully below, the Court orders Petitioner to show cause why the Petition should not
be dismissed as untimely.
I.
BACKGROUND
The following facts are taken from the Petition, from the Court’s own
records, or from public records; where necessary, the Court takes judicial notice of
the latter. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that
is not subject to reasonable dispute because it … can be accurately and readily

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determined from sources whose accuracy cannot reasonably be questioned.”);

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United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take

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judicial notice of its own records in other cases, as well as the records of an inferior

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court in other cases.”)

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Petitioner challenges a conviction and sentence entered on July 1, 2014.

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(Petition at 2.) He pled “no contest” and did not appeal. (Id.) He subsequently

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filed a habeas petition on Los Angeles County Superior Court case no. BA426197.

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(Id. at 4.) While the Petition does not indicate when this superior court petition was

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filed, the Los Angeles County Superior Court’s online records indicate a filing date

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of June 6, 2017. The California Supreme Court’s online records indicate that

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Petitioner filed a habeas petition in that court on June 12, 2017.

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II.

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DISCUSSION

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A.

Legal Standard

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The Ninth Circuit has held that the district court has the authority to raise the

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statute of limitations issue sua sponte when untimeliness is obvious on the face of

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the Petition and to summarily dismiss a habeas petition on that ground pursuant to

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Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts, so long as the Court “provides the petitioner with adequate notice and an

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opportunity to respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir.

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2004); Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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1.

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This action is subject to the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”). Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal. (Beeler),

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128 F.3d 1283, 1287 n.3 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998).1

One-Year Statute of Limitations

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Beeler was overruled on other grounds in Calderon v. U.S. Dist. Court
(Kelly), 163 F.3d 530, 540 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060
(1999).
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AEDPA provides as follows:

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(d) (1) A 1-year period of limitation shall apply to an application for

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a writ of habeas corpus by a person in custody pursuant to the

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judgment of a State court. The limitation period shall run from the

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latest of--

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(A) the date on which the judgment became final by the

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conclusion of direct review or the expiration of the time for seeking

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such review;

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(B) the date on which the impediment to filing an application

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created by State action in violation of the Constitution or laws of the

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United States is removed, if the applicant was prevented from filing

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by such State action;

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(C) the date on which the constitutional right asserted was

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initially recognized by the Supreme Court, if the right has been newly

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recognized by the Supreme Court and made retroactively applicable to

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cases on collateral review; or

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(D) the date on which the factual predicate of the claim or

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claims presented could have been discovered through the exercise of

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due diligence.

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(2) The time during which a properly filed application for State post-

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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

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of limitation under this subsection.

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28 U.S.C. § 2244(d).

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Thus, AEDPA “establishes a 1-year time limitation for a state prisoner to file

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a federal habeas corpus petition.” Jimenez v. Quarterman, 555 U.S. 113, 114

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(2009). The statute of limitations period generally runs from “the date on which the

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judgment became final by the conclusion of direct review or the expiration of the
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time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “[F]or a state prisoner

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who does not seek review in a State’s highest court, the judgment becomes ‘final’

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for purposes of § 2244(d)(1)(a) on the date that the time for seeking such review

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expires.” Gonzalez v. Thaler, 565 U.S. 134, 135 (2012). The time for seeking

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appellate review of Petitioner’s underlying conviction expired on August 30, 2014,

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i.e., 60 days after it was entered. See Cal. R. Ct. 8.308(a).

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2.

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AEDPA provides for statutory tolling, as follows:

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The time during which a properly filed application for State post-

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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

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of limitation under this subsection.

Statutory Tolling

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28 U.S.C. § 2244(d)(2). The United States Supreme Court has interpreted this

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language to mean that the AEDPA’s statute of limitations is tolled from the time the

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first state habeas petition is filed until the California Supreme Court rejects a

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petitioner’s final collateral challenge, so long as the petitioner has not unreasonably

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delayed during the gaps between sequential filings. Carey v. Saffold, 536 U.S. 214,

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219-21 (2002) (holding that, for purposes of statutory tolling, a California

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petitioner’s application for collateral review remains pending during the intervals

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between the time a lower state court denies the application and the time the

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petitioner files a further petition in a higher state court); Nino v. Galaza, 183 F.3d

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1003, 1006 (9th Cir.), cert. denied, 529 U.S. 1104 (2000)(The statute is tolled from

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“the time the first state habeas was filed until the California Supreme Court rejects

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the petitioner’s final collateral challenge.”).

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Importantly for Petitioner, statutory tolling “does not permit the reinitiation

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of a limitations period that has ended before the state petition was filed,” even if the

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state petition was timely filed. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.),

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cert. denied, 540 U.S. 924 (2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir.
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2001); Wixom v. Washington, 264 F.3d 894, 898-99 (9th Cir. 2001), cert. denied,

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534 U.S. 1143 (2002).

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3.

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In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court held that

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the AEDPA’s one-year limitation period also is subject to equitable tolling in

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appropriate cases.

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petitioner must show both that (1) he has been pursuing his rights diligently, and

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(2) some extraordinary circumstance stood in his way and prevented his timely

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filing. See Holland, 130 S. Ct. at 2562 (quoting Pace, 544 U.S. at 418). The Ninth

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Circuit has held that the Pace standard is consistent with the Ninth Circuit’s

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“sparing application of the doctrine of equitable tolling.” Waldron-Ramsey v.

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Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009).

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Thus, “[t]he petitioner must show that ‘the extraordinary circumstances were the

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cause of his untimeliness and that the extraordinary circumstances made it

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impossible to file a petition on time.’” Porter, 620 F.3d at 959 (quoting Ramirez v.

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Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he threshold necessary to trigger

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equitable tolling [under AEDPA] is very high, lest the exceptions swallow the

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rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, 537 U.S.

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1003 (2002). Consequently, as the Ninth Circuit has recognized, equitable tolling

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will be justified in few cases. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003);

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Waldron-Ramsey, 556 F.3d at 1011 (“To apply the doctrine in ‘extraordinary

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circumstances’ necessarily suggests the doctrine’s rarity, and the requirement that

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extraordinary circumstances ‘stood in his way’ suggests that an external force must

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cause the untimeliness, rather than, as we have said, merely ‘oversight,

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miscalculation or negligence on [the petitioner’s] part, all of which would preclude

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the application of equitable tolling.’”).

Equitable Tolling

However, in order to be entitled to equitable tolling, the

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The burden of demonstrating that the AEDPA’s one-year limitation period

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was sufficiently tolled, whether statutorily or equitably, rests with the petitioner.
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See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Banjo v. Ayers, 614 F.3d

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964, 967 (9th Cir. 2010); Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (as

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amended); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

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B.

The Petition Appears to Be Untimely.

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Petitioner’s conviction became final on August 30, 2014, at which point

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AEDPA’s one-year limitations period began to run. Absent statutory or equitable

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tolling, that limitations period expired on August 30, 2015. Petitioner has not

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demonstrated that he filed any state habeas petitions prior to that date which could

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create statutory tolling.

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Petitioner has not described any circumstances in his

Petition that might create equitable tolling.

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IT IS THEREFORE ORDERED that, on or before July 26, 2017, Petitioner

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show cause in writing, if any he has, why the Court should not recommend that this

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action be dismissed with prejudice on the ground of untimeliness.

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DATED: June 26, 2017

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___________________________________
KAREN E. SCOTT
UNITED STATES MAGISTRATE JUDGE

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