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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DUC H. TRUONG, Petitioner, 12 vs. 13 14 L.S. McEWEN, Warden, Respondent. 15 ) ) ) ) ) ) ) ) ) ) CASE NO. SA CV 12-1134 JAK (RZ) ORDER TO SHOW CAUSE 16 The Court issues this Order To Show Cause directed to Petitioner because the 17 18 face of the petition suggests that this habeas action is time-barred. 19 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 20 (AEDPA), a portion of which established a one-year statute of limitations for bringing a 21 habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the limitations 22 period commences on the date a petitioner’s conviction became final. See 28 U.S.C. 23 § 2244(d)(1). For prisoners like Petitioner, whose conviction became final before AEDPA 24 took effect, the limitation period instead typically begins with AEDPA’s effective date of 25 April 24, 1996. Bryant v. Arizona Attorney General, 499 F.3d 1056, 1058 (9th Cir. 2007). 26 27 /// 28 /// 1 The time spent in state court pursuing collateral relief in a timely manner is 2 excluded, see 28 U.S.C. § 2244(d)(2), and the courts have held that the statute also is 3 subject to equitable tolling. See Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 4 2562-63, 177 L. Ed. 2d 130 (2010). The current petition was filed on July 12, 2012. From the face of the petition 5 6 7 and from judicially-noticeable materials, the Court discerns that – (a) In 1993, an Orange County Superior Court jury convicted Petitioner of 8 murder, personal use of a firearm and multiple counts of residential burglary. 9 He was sentenced to prison for life without possibility of parole. Pet. ¶ 2. 10 (b) The California Court of Appeal affirmed in July 1995. See People v. Truong, 11 No. G015257, Cal. Ct. App. (4th Dist., Div. 3, 1995). The California 12 Supreme Court denied a petition for further direct review on October 4, 1995. 13 See People v. Truong, No. S048592, Cal. Supreme Ct. (1995). Petitioner did 14 not petition the United States Supreme Court for a writ of certiorari. 15 16 (c) Nearly seventeen years passed without apparent further legal challenges by Petitioner, until the filing of the present petition. ***** 17 18 Unless this Court has miscalculated the limitations period, or some form of 19 additional tolling applies in sufficient measure, this action is time-barred. It appears that 20 Petitioner’s limitations period expired over 15 years ago, in April 1997, one year after 21 AEDPA’s effective date. 22 petition. Petitioner asserts that he “is illiterate and barely speaks English” and, partly for 23 those reasons, was unaware until recently of his legal right to file a federal-court habeas 24 petition. Ignorance of the law is no excuse at all, and Petitioner’s difficulties in English, 25 without more, do not excuse such extensive tardiness as is involved here. No basis for equitable tolling appears from the face of the 26 This Court may raise sua sponte the question of the statute of limitations bar, 27 so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260 28 F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause why this action should -2- 1 not be dismissed as being barred by the one-year statute of limitations. Petitioner shall file 2 his response to the Court’s Order to Show Cause not later than 21 days from the filing date 3 of this Order. 4 5 6 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. 7 8 DATED: July 16, 2012 9 10 11 12 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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