Frederick R Cote v. B. Cash
Filing
10
MINUTE ORDER TO SHOW CAUSE by Magistrate Judge Andrew J. Wistrich. Petitioner shall show cause why the petition should not be dismissed as untimely by filing a response to this order within twenty-eight (28) days of the date of this order. IT IS SO ORDERED. (mz)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
Case No. EDCV 12-688 GHK (AJW)
Date: May 8, 2012
TITLE: FREDERICK RAYMOND COTE v. B. CASH
PRESENT:
HON. ANDREW J. WISTRICH, MAGISTRATE JUDGE
Ysela Benavides
Deputy Clerk
Not Present
Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS:
None
ATTORNEYS PRESENT FOR DEFENDANTS:
None
ORDER TO SHOW CASE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY
Petitioner filed this petition for writ of habeas corpus on April 9,
2012.1
From the face of the petition, it appears that it is barred by the
one-year period of limitation set forth in the AEDPA. 28 U.S.C. §
2244(d)(1). According to the petition, petitioner was convicted in
1994, and the California Supreme Court denied his petition for review
on April 2, 1997. [Petition at 2-3]. Thus, it appears that
petitioner’s conviction became final in July, 1997. Consequently,
petitioner had one year – or until July 1998 – to file a federal
petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th
Cir.), cert. denied, 534 U.S. 978 (2001).
This petition was not filed until April 9, 2012, nearly fourteen
years after the limitation period expired. Thus, absent grounds for
statutory, see 28 U.S.C. § 2244(d)(1) and (2), or equitable tolling
of the limitation period, the petition is time-barred.
1
Although the petition was filed by the Clerk’s Office on
April 17, 2012, petitioner is entitled to the benefit of the
“mailbox rule,” pursuant to which a state or federal habeas
petitions is deemed filed on the date on which petitioner handed it
to the proper prison official for mailing. See Houston v. Lack, 487
U.S. 266, 276 (1988) (holding that a pro se prisoner’s pleading is
deemed filed at the moment it is delivered to prison authorities
for forwarding to the district court).
The Court assumes that
petitioner handed his petition to the proper prison officials on
the date he signed it.
It does not appear that petitioner filed any state habeas petitions
during the relevant period.
Although petitioner filed habeas
petitions in state court, his first such petition was filed in 2009
[Petition at 4], more than a decade after the limitation period
already expired. Therefore, it is likely that these petitions do not
toll the already-expired limitation period. See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir.) (“section 2244(d) does not
permit the reinitiation of the limitations period that has ended
before the state petition was filed”), cert. denied, 540 U.S. 924
(2003).
Furthermore, petitioner has not provided an adequate explanation for
the lengthy delay in filing his federal habeas petition that might
entitle him to equitable tolling of the one year statute of
limitation. The Supreme Court explained that “a litigant seeking
equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 & n.8 (2005). “In this circuit, equitable tolling
of the filing deadline for a habeas petition is available ‘only if
extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time.’” Lott v. Mueller, 304 F.3d
918, 924 (9th Cir. 2002) (citation and quotation omitted). Equitable
tolling may be appropriate when “external forces, rather than a
petitioner’s lack of diligence, account for the failure to file a
timely claim.” Lott, 304 F.3d at 925(citation omitted).
Petitioner may be entitled to a later starting date based upon his
allegation of newly discovered evidence. [Petition at 5].
Under
section 2244(d)(1)(D), a petition is timely if it is filed no later
than a year from the date on which the factual predicate of the
claims “could have been discovered through the exercise of due
diligence.”
As the Ninth Circuit has explained, under section
2244(d)(1)(D), the limitation period does not begin until the
petitioner knows, or through diligence could discover, the important
facts underlying his claim, not when petitioner recognizes the legal
significance of these facts. Hasan v. Galaza, 254 F.3d 1150, 1154 &
n. 3 (9th Cir. 2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th
Cir. 2000) (“Time begins when the prisoner knows (or through
diligence could discover) the important facts, not when the prisoner
recognizes their legal significance.”)). Petitioner, however, has not
explained when he discovered the factual predicate of his claims, nor
has he provided the Court with any explanation of what action he took
in an effort to discover and present his claims and why he could not
have discovered the factual predicate for his claims earlier.
Petitioner shall show cause why the petition should not be dismissed
as untimely by filing a response to this order within twenty-eight
(28) days of the date of this order. In the response to this order,
petitioner must describe in detail the steps he took in an effort to
uncover the factual basis for his claims.
He also shall, if
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possible, attach copies of any state petition he filed and the state
court’s decision addressing each such petition. All facts relied
upon by petitioner must be proved by testimony contained in a
declaration signed under penalty of perjury, see 28 U.S.C. §1746, or
in properly authenticated documents.
Petitioner must describe
specifically the nature and duration of any extraordinary
circumstances and their consequences in a declaration signed by him
under penalty of perjury. Petitioner shall also include with his
response properly authenticated prison records or documents which
demonstrate any circumstance which petitioner believes impeded his
ability to timely file his petition.
Petitioner’s failure to timely file a response to this order may
result in the dismissal of his petition.
IT IS SO ORDERED.
cc: Parties
MINUTES FORM 11
CIVIL-GEN
Initials of Deputy Clerk________
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