ORDER TO SHOW CAUSE
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Request to Proceed In Forma Pauperis
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis is granted.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ."
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:
28 U.S.C. § 2244(d)(1).
Section 2244(d)(2) provides that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2). Generally, this means that the statute of limitations is tolled during the time after a state habeas petition has been filed, but before a decision has been rendered.
State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect.
Petitioner was convicted of second degree murder with use of a firearm on August 23, 1983, and sentenced to 17 years to life. (ECF No. 1 at 1.) Petitioner filed an appeal, which was denied by the appellate court, and his petition for review was also denied by the California Supreme Court. Petitioner states he cannot recall the dates due to the passage of time.
Petitioner did not file a petition for certiorari in the United States Supreme Court, and states he filed no other collateral challenges in any other court, state or federal. (ECF No. 1 at 2.)
Petitioner constructively filed the instant action on July 5, 2017. (ECF No. 1 at 9.) Petitioner raises two grounds in his petition:
2. Petitioner's continued imprisonment violates the Eighth Amendment because his sentence is not proportional.
Appellate Courts Case Information 1
The California Courts official website reflects petitioner filed the following cases:
1. On July 8, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District.
2. On February 21, 2014, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District.
3. On January 26, 2017, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District.
4. On August 27, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court.
5. On April 19, 2017, petitioner filed a petition for writ of habeas corpus in the California Supreme Court.
Here, petitioner's conviction became final prior to the enactment of AEDPA. State prisoners whose convictions became final prior to AEDPA's enactment, had a one-year grace period in which to file their petitions.
Petitioner does not appear to contend that he is entitled to a later trigger date under 28 U.S.C. § 2244(d)(1)(B) or (C), and the petition provides no such basis. Petitioner does not contend that he was impeded from filing his federal petition by unconstitutional state action and thereby entitled to a later trigger date under § 2244(d)(1)(B). Moreover, petitioner asserts no basis to contend that he is entitled to a later trigger date under § 2244(d)(1)(C) because his claim is based on a federal constitutional right that was initially recognized by the United States Supreme Court subsequent to the date his conviction became final and was made retroactively applicable to cases on collateral review.
Moreover, for purposes of § 2244(d)(1)(D), the statute of limitations begins to run when a petitioner "knows (or through diligence could discover) the important facts, not when the [petitioner] recognizes their legal significance."
The burden of demonstrating that the AEDPA's one-year limitations period was sufficiently tolled, whether statutorily or equitably,
Finally, to the extent petitioner is attempting to seek relief under
The official records of the California Supreme Court reflect that petitioner's petition was denied without prejudice to renewal following a decision Butler, which is pending decision at this time. Thus, if petitioner wishes to pursue relief reserved pursuant to the order of the California Supreme Court, he must await the decision in
In conclusion, because petitioner's conviction became final before the enactment of AEDPA, and the limitations period expired on April 24, 1997, petitioner's July 15, 2017 federal petition is barred by the statute of limitations. In an abundance of caution, petitioner is ordered to show cause why this action should not be dismissed as time-barred.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis is granted; and
2. Within thirty days from the date of this order, petitioner shall show cause why this action should not be dismissed as barred by the statute of limitations.