(HC) Wilson v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME WILSON, Case No. 1:19-cv-01602-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS 13 v. UNTIMELY 14 STU SHERMAN, RESPONSE DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 17 Petitioner Jerome Wilson, a state prisoner without counsel, seeks a writ of habeas corpus 18 under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review under Rule 19 4 of the Rules Governing Section 2254 Cases. See R. Governing § 2254 Cases 4; 28 U.S.C. 20 § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly appears” that 21 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 22 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Because it appears that the 23 petition is untimely, we will order petitioner to show cause why his petition should not be 24 dismissed. 25 Discussion 26 This court may raise the statute of limitations sua sponte when reviewing a habeas 27 petition. See Day v. McDonough, 547 U.S. 198, 209 (2006); Herbst v. Cook, 260 F.3d 1039, 28 1042 n.3 (9th Cir. 2001) (Federal district courts may consider the timeliness of a state prisoner’s 1 habeas petition to serve the interests of judicial efficiency.). Under the Antiterrorism and 2 Effective Death Penalty Act (“AEDPA”), petitioners seeking habeas relief under § 2254 must 3 comply with a one-year statute of limitations. For most habeas petitioners, the one-year clock 4 starts to run on “the date on which the judgment became final by the conclusion of direct review 5 or the expiration of the time for seeking such review.” 42 U.S.C. § 2244(d)(1)(A). However, a 6 petition may also be timely if it is filed within one year of “the date on which the constitutional 7 right asserted was initially recognized by the Supreme Court, if the right has been newly 8 recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 9 Id. § 2244(d)(1)(C). 10 Here, petitioner filed his federal habeas petition on November 12, 2019, six years after his 11 2013 criminal conviction became final. ECF No. 1. Petitioner urges us to consider his petition 12 timely under § 2244(d)(1)(C), relying on the passage of a new California state law that allows for 13 the striking of gun enhancements at criminal sentencing. See Cal. Penal Code § 12022.5(c) (West 14 2018) (“The court may, in the interest of justice pursuant to Section 1385 and at the time of 15 sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.”). 16 However, only a new right recognized by the U.S. Supreme Court, not a state court, can toll the 17 statute of limitations under § 2244(d)(1)(C). See Dodd v. U.S., 545 U.S. 353, 358-60 (2005). 18 Here, petitioner has presented no evidence, and we can find none, that demonstrates that the U.S. 19 Supreme Court has recognized a new constitutional right under California’s Section 12022.5(c). 20 Moreover, petitioner does not seek, nor has he demonstrated that he is eligible for, any other form 21 of statutory or equitable tolling. Because the record indicates that the petition may “fall outside 22 the one-year time period, the petitioner has the burden of demonstrating that he is entitled to 23 tolling.” Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002), abrogated on other grounds by 24 Pace v. DiGuglielmo, 544 U.S. 408 (2005). Therefore, petitioner must explain to this court how 25 his petition complies with § 2244(d). 26 27 28 1 | Order 2 Within thirty days of the date of service of this order, petitioner must show cause why the 3 | court should not dismiss his petition as untimely. Failure to comply with this order may result in 4 | the dismissal of the petition. 5 6 IT IS SO ORDERED. ’ : —N prssann — Dated: _ March 20, 2020 8 UNI STATES MAGISTRATE JUDGE 9 10 | No. 206. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28