(HC) Jenkins v. Martinez ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALONZO JENKINS, Case No. 1:23-cv-01591-JLT-SAB-HC 11 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 12 v. AS UNTIMELY 13 L.A. MARTINEZ, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. On October 6, 2023, Petitioner filed the instant federal habeas 18 petition in the United States District Court for the Northern District of California. (ECF No. 1.) 19 On November 9, 2023, the petition was transferred to this Court. (ECF Nos. 7, 8.) 20 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 21 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 22 to file a response, if it “plainly appears from the petition and any attached exhibits that the 23 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 24 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 25 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 26 of 1996 (“AEDPA”). AEDPA imposes a one-year period of limitation on petitioners seeking to 27 file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Section 2244(d) provides: 1 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the 2 judgment of a State court. The limitation period shall run from the latest of – 3 (A) the date on which the judgment became final by the 4 conclusion of direct review or the expiration of the time for seeking such review; 5 (B) the date on which the impediment to filing an application 6 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented 7 from filing by such State action; 8 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 9 newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 10 (D) the date on which the factual predicate of the claim or 11 claims presented could have been discovered through the exercise of due diligence. 12 (2) The time during which a properly filed application for State 13 post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward 14 any period of limitation under this subsection. 15 28 U.S.C. § 2244(d). 16 In most cases, the limitation period begins running on the date that the petitioner’s direct 17 review became final or the expiration of the time for seeking such review. Here, Petitioner 18 challenges his 1998 Merced County conviction and sentence. (ECF No. 1 at 1.) Although 19 Petitioner does not provide enough information to determine when direct review of his 20 conviction became final, it appears that more than twenty years have passed since direct review 21 of Petitioner’s convictions has become final. Accordingly, the instant federal petition is untimely 22 unless Petitioner establishes that statutory and/or equitable tolling is warranted. 23 The “time during which a properly filed application for State post-conviction or other 24 collateral review with respect to the pertinent judgment or claim is pending shall not be counted 25 toward” the one-year limitation period. 28 U.S.C. § 2244(d)(2). The limitation period also is 26 subject to equitable tolling if the petitioner demonstrates “‘(1) that he has been pursuing his 27 rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 1 | U.S. 408, 418 (2005)). Petitioner bears the burden of alleging facts that would give rise to 2 | tolling. Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. 3 Accordingly, Petitioner is ORDERED to SHOW CAUSE within THIRTY (30) days 4 | from the date of service of this order why the petition should not be dismissed as untimely. 5 Petitioner is forewarned that failure to follow this order may result in a recommendation 6 | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 7 | failure to prosecute or to comply with a court order may result in a dismissal of the action). 8 9 IT IS SO ORDERED. DAA (e_ 10 | Dated: _December 7, 2023 _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28