Peter Paul Noriega v. David Long et al
Filing
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ORDER TO SHOW CAUSE by Magistrate Judge Jean P Rosenbluth. (See Order for details.) Response to Order to Show Cause due by 9/26/2013. (wr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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PETER PAUL NORIEGA,
) Case No. EDCV 13-1474-MWF (JPR)
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) ORDER TO SHOW CAUSE
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Petitioner,
vs.
DAVID LONG, Warden,
Respondent.
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On August 13, 2013, Petitioner constructively filed a
18 Petition for Writ of Habeas Corpus by a Person in State Custody.
19 The Petition challenges Petitioner’s 2007 conviction and 6220 years-to-life sentence in Riverside County Superior Court for
21 murder and related offenses.
Petitioner raises four claims,
22 three of which he appears to have raised on direct appeal, and
23 one – ineffective assistance of counsel – that he acknowledges he
24 has not previously raised.
(Pet. at 5-6.)
The California
25 Supreme Court denied his Petition for Review on January 14, 2009,
26 according to the California Appellate Courts’ Case Information
27 website, and Petitioner did not file a petition for writ of
28 certiorari in the U.S. Supreme Court (Pet. at 3).
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Petitioner
1 states that he did not file any state habeas petitions (Pet. at
2 3), and the Court’s review of the Case Information website seems
3 to confirm that.
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Under the Antiterrorism and Effective Death Penalty Act of
5 1996 (“AEDPA”), a petitioner generally has one year from the date
6 his conviction became final to file a federal habeas petition.
7 See 28 U.S.C. § 2244(d).
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(1)
That statute provides:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
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custody pursuant to the judgment of a State court.
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limitation period shall run from the latest of--
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(A)
The
the date on which the judgment became
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final by the conclusion of direct review or the
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expiration of the time for seeking such review;
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(B)
the
date
on
which
the
impediment
to
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filing an application created by State action in
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violation of the Constitution or laws of the United
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States is removed, if the applicant was prevented
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from filing by such State action;
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(C)
the
date
on
which
the
constitutional
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right asserted was initially recognized by the
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Supreme
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recognized
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retroactively applicable to cases on collateral
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review; or
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(D)
Court,
by
if
the
the
right
Supreme
has
Court
been
newly
and
made
the date on which the factual predicate
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of the claim or claims presented could have been
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discovered through the exercise of due diligence.
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(2)
The
time
during
which
a
properly
filed
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application for State post-conviction or other collateral
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review with respect to the pertinent judgment or claim is
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pending
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limitation under this subsection.
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Petitioner’s conviction apparently became final on April 14,
shall
not
be
counted
toward
any
period
of
7 2009, 90 days after the California Supreme Court denied his
8 Petition for Review.
9 Cir. 1999).
See Bowen v. Roe, 188 F.3d 1157, 1159 (9th
Thus, absent some kind of tolling or a later trigger
10 date, Petitioner had until April 13, 2010, to file his federal
11 Petition.
See Patterson v. Stewart, 251 F.3d 1243, 1246
12 (9th Cir. 2001) (limitation period begins to run day after
13 triggering event).
He did not file it until August 13, 2013,
14 seemingly more than three years late.
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From the face of the Petition it does not appear that
16 Petitioner is entitled to a later trigger date on any of his
17 claims.
As to three of the claims, Petitioner simply attaches
18 his opening brief on appeal, and therefore he necessarily knew of
19 them before his conviction became final.
As to his ineffective-
20 assistance-of-counsel claim, Petitioner has provided no facts or
21 argument in support; he states merely that the other three
22 “grounds raised herein are the result of (IAC).”1
(Pet. at 6.)
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He also attached to the Petition a one-page declaration
making certain conclusory claims about his trial lawyer, including
that he asked his attorney to call a particular witness but the
attorney “never subpoenaed her,” his attorney never filed a newtrial motion, and his attorney didn’t hire a gang expert. These
bare allegations are not sufficient to raise a claim for relief.
Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (conclusory
allegations not supported by specific facts do not warrant habeas
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1 Even if that claim could conceivably be timely, it nonetheless
2 appears to be unexhausted, and therefore the Court could not
3 consider it even were it sufficiently developed.
See Rose v.
4 Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379
5 (1982) (holding that “mixed” petitions – those containing both
6 exhausted and unexhausted claims – must generally be dismissed);
7 cf. Rhines v. Weber, 544 U.S. 269, 277-78, 125 S. Ct. 1528, 1535,
8 161 L. Ed. 2d 440 (2005) (allowing for stays of mixed petitions
9 in certain circumstances).
Thus, Petitioner has not shown that
10 he is entitled to a later trigger date on any of his claims.
11 Moreover, because Petitioner has apparently not filed any state
12 habeas petitions (see Pet. at 3), he does not appear to be
13 entitled to any statutory tolling.
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In certain circumstances, a habeas petitioner may be
15 entitled to equitable tolling.
See Holland v. Florida, 560 U.S.
16 __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 (2010).
But he must
17 show that (1) he has been pursuing his rights diligently and (2)
18 “some extraordinary circumstance stood in his way.”
See Pace v.
19 DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed.
20 2d 669 (2005).
Petitioner states in a one-page declaration he
21 attached to the Petition that “I was in SHU at Pelican Bay State
22 Prison from 3-2007 thru 1-2011 and HDSP from 1-2011 thru 10-2011
23 on lockdown”; he further asserts that
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my trial attorney finally sent my client file after
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numerous requests.
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15, 2013.
I finally received it around March
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28 relief).
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1 He attaches a copy of his March 5, 2013 letter to his trial
2 attorney requesting his file but does not attach any earlier
3 letters or otherwise demonstrate earlier efforts to get the file.
4 Petitioner has also attached to his Petition letters his
5 appellate attorney wrote to him and others in 2007 and 2009.
The
6 appellate attorney warned Petitioner in her July 14, 2009 letter
7 that
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if you wish to pursue your case on your own in federal
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court, . . . [t]he deadline . . . is calculated from the
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date of the denial of the petition as 90 days, plus one
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year.
This is an absolute deadline.
12 She also informed him that his Petition for Review was denied in
13 January 2009; a subsequent letter seems to show that she sent
14 Petitioner his trial transcripts in October 2009, well before the
15 limitation period expired, and again warned him of the deadline.
16 Thus, Petitioner was aware that any federal habeas Petition had
17 to be filed no later than April 2010, and he apparently had the
18 materials he needed to pursue federal habeas relief in a timely
19 manner.
Cf. Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001)
20 (denying tolling because habeas petition can be filed without
21 access to trial record, which may be ordered subsequently if
22 necessary for reviewing court’s decision).
Even accepting all of
23 Petitioner’s assertions as true and crediting his argument that
24 he could not have filed his Petition until he received his case
25 file, in March 2013, he has not explained why he waited five more
26 months to file it.
Indeed, his federal Petition mostly simply
27 relies on his opening brief on appeal and therefore could not
28 have taken much time to prepare.
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A district court has the authority to raise the statute-of-
2 limitations issue sua sponte when untimeliness is obvious on the
3 face of a petition; it may summarily dismiss the petition on that
4 ground pursuant to Rule 4 of the Rules Governing § 2254 Cases in
5 the U.S. District Courts, as long as the court gives petitioner
6 adequate notice and an opportunity to respond.
Herbst v. Cook,
7 260 F.3d 1039, 1042-43 (9th Cir. 2001).
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IT THEREFORE IS ORDERED that on or before September 26,
9 2013, Petitioner show cause in writing, if he has any, why the
10 Court should not recommend that this action be dismissed because
11 it is untimely for the reasons stated above.
Petitioner is
12 advised that his failure to timely comply with this Order may
13 result in his Petition being dismissed for the reasons stated
14 herein and for failure to prosecute.
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17 DATED: August 27, 2013
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE
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