Opinion
2:22-cv-00047-JDP (HC)
04-11-2022
JUAN PAYTON MENENDEZ, Petitioner, v. WARDEN, Respondent.
ORDER FINDING THAT THE PETITION IS LIKELY TIME-BARRED AND GRANTING LEAVE TO AMEND WITHIN THIRTY DAYS ECF NO. 1
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing the petition, I find that the petition is likely time-barred. I will give petitioner a chance to amend and explain why his claims should proceed before recommending dismissal of this action.
The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
Petitioner is challenging a murder conviction from 2007. ECF No. 1 at 1. The Anti-Terrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations for state prisoners to file their federal habeas petition. 28 U.S.C. § 2244(d)(1). Here, the petition is 1 roughly fifteen years past due. Petitioner may be entitled to tolling for time spent pursuing his direct appeal or state habeas petitions, but it is unlikely to bridge the lengthy gap between his conviction and the filing of this petition.
I will allow petitioner to file an amended complaint that explains why his claims should proceed despite the apparent time bar.
It is ORDERED that:
1. Petitioner may file an amended § 2254 petition within thirty days of this order's entry. If he does not, I will recommend that the current petition be dismissed for the reasons stated in this order.
2. The Clerk of Court is directed to send petitioner a federal habeas form.
IT IS SO ORDERED. 2