Raul Alvarez v. W. L. Montgomery

Filing 3

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: TIMELINESS by Magistrate Judge Steve Kim. Petitioner is ORDERED TO SHOW CAUSE on or before November 30, 2017 why this action should not be dismissed as untimely. If Petitioner does not file a timely response t o this Order to Show Cause, Petitioner is advised that the Court will dismiss the Petition. If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss the action pursuant to Federal Rule of Civil Procedure 41(a) by filing a & quot;Notice of Dismissal." Petitioner is advised that failure to file a timely response to this Order to Show Cause may result in dismissal of this action for failure to prosecute. (See document for further details.) (Attachments: # 1 Notice of Dismissal Form) (sbou)

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

2:17-cv-07838-GW (SK)

Title

Raul Alvarez v. W. L. Montgomery, Warden

Present: The Honorable

Date

October 30, 2017

Steve Kim, U.S. Magistrate Judge

Marc Krause

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE RE: TIMELINESS

On October 26, 2017, Petitioner constructively filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254 challenging his 2010 convictions for first-degree murder, robbery, and
grand theft. (Petition (“Pet.”), ECF No. 1). Petitioner filed a direct appeal and then a petition
for review in the California Supreme Court that was denied on June 13, 2012. 1 He did not file
a petition for certiorari in the U.S. Supreme Court. (Pet. at 3). Thus, the judgment became
final 90 days later at the expiration of the time in which Petitioner could seek review in the
Supreme Court. From this date, Petitioner had one year in which to file a federal habeas
petition. See 28 U.S.C. § 2244 (d)(1)(A). Hence, Petitioner’s statute of limitations to file a §
2254 federal habeas petition expired on September 11, 2013.
Petitioner’s state habeas petitions filed in 2016-2017, even if “properly filed” under
California law, do not revive or reinitiate the federal limitations period that ended in 2013. See
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, his petition is barred as
untimely, unless he can show some other reason that he is entitled to delayed commencement
of the limitations period or equitable tolling. See 28 U.S.C. § 2244(d)(1).
Accordingly, Petitioner is ORDERED TO SHOW CAUSE on or before November
30, 2017 why this action should not be dismissed as untimely. If Petitioner does not file a
timely response to this Order to Show Cause, Petitioner is advised that the Court will dismiss
the Petition. If Petitioner no longer wishes to pursue this action, he may voluntarily dismiss
the action pursuant to Federal Rule of Civil Procedure 41(a) by filing a “Notice of Dismissal.”
Petitioner is advised that failure to file a timely response to this Order to Show
Cause may result in dismissal of this action for failure to prosecute. See Fed. R.
Civ. P 41(b); L.R. 41-1.

The Court takes judicial notice of the public judicial records of Petitioner’s direct appeals and state habeas
petitions. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (stating federal courts may take judicial notice
of relevant state court records).

1

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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