(HC) Shotwell v. Covello ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IMMANUEL SHOTWELL, Case No. 2:24-cv-00318-JDP (HC) 12 Petitioner, ORDER 13 v. SCREENING THE PETITION, OFFERING LEAVE TO AMEND, AND GRANTING 14 PATRICK COVELLO, PETITIONER’S APPLICATION TO PROCEED IN FORMA PAUPERIS 15 Respondent. ECF Nos. 1 & 2 16 17 18 Petitioner, a state prisoner, brings this action under § 2254 and alleges several claims 19 related to a conviction that was finalized in 2019. ECF No. 1 at 1-2. His petition appears to be 20 time-barred. I will give him leave to amend so that he may explain why it should proceed. 21 Additionally, I will grant petitioner’s application to proceed in forma pauperis. ECF No. 2. 22 The petition is before me for preliminary review under Rule 4 of the Rules Governing 23 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 24 the habeas petition and order a response to the petition unless it “plainly appears” that the 25 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 26 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27 Petitioner has previously brought claims related to this conviction in this district. In 28 Shotwell v. Couello, No. 2:22-cv-02176-TLN-EFB, it was determined that those claims were 1 | barred by the one-year statute of limitations contained in the Anti-Terrorism and Effective Death 2 | Penalty Act (‘AEDPA”). Id. at ECF Nos. 16 & 17. In that case, Magistrate Judge Brennan 3 | determined that the last day for petitioner to file a federal habeas petition attacking this conviction 4 | was June 22, 2022. Id. at ECF No. 16. The instant action was filed in January 2024. ECF No. 1. 5 | Thus, it appears that petitioner’s claims are time-barred. I will defer recommending dismissal and 6 | allow petitioner an opportunity to amend. He should explain why, if at all, his claims should be 7 | considered timely. 8 It is hereby ORDERED that: 9 1. Petitioner may file an amended petition within thirty days of this order’s entry. If 10 | he fails to do so, I will recommend that this action be dismissed. 11 2. The Clerk of Court is directed to send petitioner a section 2254 habeas form with 12 | this order. 13 3. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is GRANTED. 14 1s IT IS SO ORDERED. 16 ( 1 Sty — Dated: _ May 7, 2024 q——— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28