Duc H Truong v. L.S. McEwen

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Ralph Zarefsky. Response to Order to Show Cause due by 8/6/2012. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DUC H. TRUONG,
Petitioner,

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vs.

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L.S. McEWEN, Warden,
Respondent.

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CASE NO. SA CV 12-1134 JAK (RZ)
ORDER TO SHOW CAUSE

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The Court issues this Order To Show Cause directed to Petitioner because the

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face of the petition suggests that this habeas action is time-barred.

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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

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(AEDPA), a portion of which established a one-year statute of limitations for bringing a

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habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the limitations

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period commences on the date a petitioner’s conviction became final. See 28 U.S.C.

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§ 2244(d)(1). For prisoners like Petitioner, whose conviction became final before AEDPA

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took effect, the limitation period instead typically begins with AEDPA’s effective date of

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April 24, 1996. Bryant v. Arizona Attorney General, 499 F.3d 1056, 1058 (9th Cir. 2007).

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The time spent in state court pursuing collateral relief in a timely manner is

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excluded, see 28 U.S.C. § 2244(d)(2), and the courts have held that the statute also is

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subject to equitable tolling. See Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560,

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2562-63, 177 L. Ed. 2d 130 (2010).
The current petition was filed on July 12, 2012. From the face of the petition

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and from judicially-noticeable materials, the Court discerns that –
(a)

In 1993, an Orange County Superior Court jury convicted Petitioner of

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murder, personal use of a firearm and multiple counts of residential burglary.

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He was sentenced to prison for life without possibility of parole. Pet. ¶ 2.

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(b)

The California Court of Appeal affirmed in July 1995. See People v. Truong,

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No. G015257, Cal. Ct. App. (4th Dist., Div. 3, 1995). The California

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Supreme Court denied a petition for further direct review on October 4, 1995.

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See People v. Truong, No. S048592, Cal. Supreme Ct. (1995). Petitioner did

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not petition the United States Supreme Court for a writ of certiorari.

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(c)

Nearly seventeen years passed without apparent further legal challenges by
Petitioner, until the filing of the present petition.
*****

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Unless this Court has miscalculated the limitations period, or some form of

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additional tolling applies in sufficient measure, this action is time-barred. It appears that

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Petitioner’s limitations period expired over 15 years ago, in April 1997, one year after

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AEDPA’s effective date.

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petition. Petitioner asserts that he “is illiterate and barely speaks English” and, partly for

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those reasons, was unaware until recently of his legal right to file a federal-court habeas

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petition. Ignorance of the law is no excuse at all, and Petitioner’s difficulties in English,

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without more, do not excuse such extensive tardiness as is involved here.

No basis for equitable tolling appears from the face of the

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This Court may raise sua sponte the question of the statute of limitations bar,

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so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260

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F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause why this action should
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not be dismissed as being barred by the one-year statute of limitations. Petitioner shall file

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his response to the Court’s Order to Show Cause not later than 21 days from the filing date

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of this Order.

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If Petitioner does not file a response within the time allowed, the action may
be dismissed for failure to timely file, and for failure to prosecute.
IT IS SO ORDERED.

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DATED: July 16, 2012

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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