Jamar Roy Lee Rogers v. Virga
Filing
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ORDER TO SHOW CAUSE by Magistrate Judge Ralph Zarefsky: Response to Order to Show Cause due by no later than 21 days from the filing date of this order. (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JAMAR ROY LEE ROGERS,
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Petitioner,
vs.
MR. VIRGA, Warden,
Respondent.
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CASE NO. CV 11-07666 RGK (RZ)
ORDER TO SHOW CAUSE
RE TIMELINESS
The Court issues this Order To Show Cause directed to Plaintiff because the
action may be time-barred.
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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
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(“AEDPA”), a portion of which established a one-year statute of limitations for bringing
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a habeas corpus petition in federal court. 28 U.S.C. § 2244(d). In most cases, the
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limitations period commences on the date a petitioner’s conviction became final. See 28
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U.S.C. § 2244(d)(1). The limitations period will start instead on one of the following dates,
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whichever is latest, if any of them falls after the petitioner’s conviction becomes final: the
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date on which a State-created impediment – itself a violation of Constitutional law – was
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removed; the date on which a newly-recognized Constitutional right was established; or
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the date on which the factual predicate for the claims could have been discovered through
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the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
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The time spent in state court pursuing collateral relief in a timely manner is
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excluded, see 28 U.S.C. § 2244(d)(2), and the courts have held that the statute also is
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subject to equitable tolling. See Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560,
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2562-63, 177 L. Ed. 2d 130 (2010).
The current petition was filed on September 15, 2011. From the face of the
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petition and from judicially-noticeable materials, the Court discerns that –
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(a)
Petitioner was convicted of robbery (carjacking) with the use of a firearm in
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Los Angeles County Superior Court in 1999. He was sentenced to 15 years in
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prison. Pet. at 3.
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(b)
The California Court of Appeal and, on August 30, 2000, the California Supreme
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Court, denied relief on direct review. See docket in People v. Rogers, No. S090260
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(Cal. Supreme Ct. 2000), available at http://appellatecases.courtinfo.ca.gov/
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search/case/mainCaseScreen.cfm?dist=0&doc_id=1821939&doc_no=S090260.
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(c)
Petitioner apparently did not seek certiorari in the United States Supreme Court.
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His conviction therefore became final after November 28, 2000, when the high
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court’s 90-day period for seeking such relief expired. See SUP. CT. R. 13.1.
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(d)
Nearly a decade passed. Late in 2010, Petitioner began seeking habeas relief, first
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in the trial court and then in the California Court of Appeal and the California
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Supreme Court. The latter court denied his final state-court challenge on May 18,
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2011. See Pet. at 6-7.
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*****
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Unless this Court has miscalculated the limitations period, or some form of
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additional tolling applies in sufficient measure, this action is time-barred. It became stale
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at the end of November 2001, a year after his conviction became final. Petitioner’s
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commencement of state habeas proceedings nearly ten years thereafter cannot rejuvenate
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his stale claims. Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000). No basis appears
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in the petition for a later AEDPA-limitations-period starting date. Nor does the face of the
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petition disclose any basis for equitable tolling.
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This Court may raise sua sponte the question of the statute of limitations bar,
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so long as it gives Petitioner an opportunity to be heard on the matter. Herbst v. Cook, 260
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F.3d 1039 (9th Cir. 2001). Accordingly, Petitioner shall show cause why this action should
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not be dismissed as being barred by the one-year statute of limitations. Petitioner shall file
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his response to the Court’s Order to Show Cause not later than 21 days from the filing date
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of this Order.
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If Petitioner does not file a response within the time allowed, the action may
be dismissed for failure to timely file, and for failure to prosecute.
IT IS SO ORDERED.
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DATED:
September 26, 2011
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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE
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