(HC) Barton v. Gastelo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM RAY BARTON, Case No. 2:21-cv-01933-JDP (HC) 12 Petitioner, ORDER FINDING THAT THE PETITION IS TIME-BARRED AND GRANTING LEAVE 13 v. TO AMEND WITHIN THIRTY DAYS 14 JOSIE GASTELO, ECF No. 1 15 Respondent. 16 17 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 18 § 2254. After reviewing the petition, I find that it is time-barred. I will give petitioner an 19 opportunity to amend before recommending that this action be dismissed. 20 The amended petition is before me for preliminary review under Rule 4 of the Rules 21 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 22 examine the habeas petition and order a response to the petition unless it “plainly appears” that 23 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 24 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 25 The conviction petitioner is challenging was finalized in 1976. ECF No. 1 at 2. He now 26 argues that his conviction should be overturned because he is innocent, but he does not explain 27 what new evidence, if any, supports his claim. Id. at 3. Given that more than forty years have 28 passed since petitioner was convicted, his petition appears time-barred. See Miles v. Prunty, 187 1 | F.3d 1104, 1105 (9th Cir. 1999) (holding that a “prisoner with a state conviction finalized before 2 | April 24, 1996... had until April 23, 1997 to file a federal habeas petition”). Before 3 || recommending that this action be dismissed, I will give petitioner an opportunity to amend and to 4 | explain why this action should proceed. 5 It is ORDERED that: 6 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is GRANTED. 7 2. Petitioner may file an amended petition within thirty days of this order’s entry. If 8 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 9 | order. 10 3. The Clerk of Court is directed to send petitioner a federal habeas form. 11 IT IS SO ORDERED. 13 ( 1 ow — Dated: _ March 4, 2022 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28