Edgardo Enrique Martinez v. Christian Pfeiffer

Filing 4

ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED AS UNTIMELY by Magistrate Judge Frederick F. Mumm. (see attached order) Petitioner to show cause in writing within thirty (30) days of the date of this order why the Petition should not be dismissed as time-barred. If Petitioner fails to provide a timely response to this order, the Court will recommend that the Petition be dismissed, with prejudice, as time-barred. IT IS SO ORDERED. Response to Order to Show Cause due by 8/12/2019. (jm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

EDGARDO ENRIQUE
MARTINEZ,

)
)
)
Petitioner,
)
)
v.
)
)
CHRISTIAN PFEIFFER, Warden, )
)
)
Respondent. )

17
18
19
20
21
22
23
24
25
26
27
28

No. CV 19-5235 (FFM)
ORDER TO SHOW CAUSE WHY THE
PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY

On April 15, 2019, petitioner Edgardo Enrique Martinez (“Petitioner”), a
California prisoner, constructively1 filed a Petition for Writ of Habeas Corpus by
a Person in State Custody (the “Petition”), pursuant to 28 U.S.C. § 2254.
(Docket No. 1.) The Petition appears to challenge two sentencing enhancements
imposed following Petitioner’s 2009 convictions in the Superior Court of Los
Angeles County.
///
A pro se petitioner’s relevant filings may be construed as filed on the date
they were submitted to prison authorities for mailing, under the prison “mailbox
rule” of Houston v. Lack, 487 U.S. 266 (1988). Petitioner submitted the Petition
to prison authorities on April 15, 2019. The Petition is therefore deemed filed on
that date.
1

1

1.

2

LIMITATIONS PERIOD FOR FEDERAL HABEAS PETITIONS
The present proceedings were initiated after the April 24, 1996, effective

3

date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), ub. L.

4

No. 104–132, 110 Stat. 1214 (1996). Accordingly, AEDPA’s timeliness

5

provisions apply, including a one-year limitations period which is subject to both

6

statutory and equitable tolling. See 28 U.S.C. § 2244(d)(1). The Petition does

7

not contain sufficient information for the Court to determine precisely when

8

Petitioner’s convictions became final. However, because the Petition was not

9

filed until April 15, 2019, it appears to be untimely, absent statutory or equitable

10

tolling. See 28 U.S.C. § 2244(d)(1); Bell v. Barnes, 2013 WL 5548621, at *4

11

(C.D. Cal. Oct. 4, 2013) (citations omitted) (finding that petition filed one day

12

late is untimely).

13

2.

STATUTORY TOLLING

14

Title 28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a

15

properly filed application for state post-conviction or other collateral review with

16

respect to the pertinent judgment or claim is pending shall not be counted toward

17

any period of limitation under this subsection.”
The Petition does not state whether Petitioner filed any state habeas

18
19

petitions with respect to the convictions at issue. Therefore, Petitioner has not

20

shown that he is entitled to statutory tolling.

21

3.

22

EQUITABLE TOLLING
The AEDPA limitations period also may be subject to equitable tolling, if

23

the petitioner shows that extraordinary circumstances beyond the petitioner’s

24

control made timely filing of a federal habeas petition impossible and the

25

petitioner has acted diligently in pursuing his rights. Holland v. Florida, 560

26

U.S. 631, 649 (2010). The petitioner bears the burden of showing that equitable

27

tolling is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

28
2

1

Here, Petitioner has demonstrated neither that any extraordinary

2

circumstances prevented him from filing a timely petition nor that he diligently

3

pursued his right to file. Accordingly, Petitioner has not shown that he is

4

entitled to equitable tolling.

5

4.

6

ORDER TO SHOW CAUSE
Under the allegations and facts of the Petition, Petitioner has not

7

demonstrated that he is entitled to a later start date of the limitations period.

8

Therefore, and because the Petition does not demonstrate any basis for statutory

9

or equitable tolling, or for setting aside the one-year limitation, the Court orders

10

Petitioner to show cause in writing within thirty (30) days of the date of this

11

order why the Petition should not be dismissed as time-barred. If Petitioner fails

12

to provide a timely response to this order, the Court will recommend that the

13

Petition be dismissed, with prejudice, as time-barred.

14
15
16

IT IS SO ORDERED.
DATE: July 12, 2019
/S/FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28
3