(HC) Menendez v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN PAYTON MENENDEZ, Case No. 2:22-cv-00047-JDP (HC) 12 Petitioner, ORDER FINDING THAT THE PETITION IS LIKELY TIME-BARRED AND GRANTING 13 v. LEAVE TO AMEND WITHIN THIRTY DAYS 14 WARDEN, 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 the petition is likely time-barred. I will give 19 petitioner a chance to amend and explain why his claims should proceed before recommending 20 dismissal of this action. 21 The petition is before me for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 23 the habeas petition and order a response to the petition unless it “plainly appears” that the 24 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 25 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 Petitioner is challenging a murder conviction from 2007. ECF No. 1 at 1. The Anti- 27 Terrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations for 28 state prisoners to file their federal habeas petition. 28 U.S.C. § 2244(d)(1). Here, the petition is 1 | roughly fifteen years past due. Petitioner may be entitled to tolling for time spent pursuing his 2 | direct appeal or state habeas petitions, but it is unlikely to bridge the lengthy gap between his 3 | conviction and the filing of this petition. 4 I will allow petitioner to file an amended complaint that explains why his claims should 5 || proceed despite the apparent time bar. 6 It is ORDERED that: 7 1. Petitioner may file an amended § 2254 petition within thirty days of this order’s 8 | entry. If he does not, I will recommend that the current petition be dismissed for the reasons 9 | stated in this order. 10 2. The Clerk of Court is directed to send petitioner a federal habeas form. 11 IT IS SO ORDERED. 13 ( 1 ow — Dated: _ April 11, 2022 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28