Opinion
Civil No. 04-0007-HO.
May 25, 2004
ORDER
Petitioner filed a petition for habeas corpus relief under 28 U.S.C. § 2254, challenging his March 21, 1997, convictions for felon in possession of a firearm, menacing and reckless driving.
Petitioner alleges that he voluntarily dismissed the appeal of his conviction on April 15, 1998, in order to file for post-conviction relief. Petitioner further alleges that the Circuit Court of Malheur County "granted" post-conviction relief on January 16, 2001.
Petitioner is not in custody. It is not clear from the petition before the court what grounds he may have prevailed on at post-conviction, or why, if he prevailed, his claims herein are not moot.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996, amended 28 U.S.C. § 2244 to provide a limitations period for filing federal habeas corpus petitions. Under § 2244(d) as amended, a petitioner now has one year from the date a direct appeal is final to file a federal habeas corpus. The one year limitations period is tolled during the time a state collateral proceeding is pending.
The AEDPA's limitations period may be equitably tolled if extraordinary circumstances beyond a prisoner's control made it impossible to file a petition on time. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). In order to establish entitlement to tolling of the § 2241(d)(1) limitations period, a petitioner must demonstrate that extraordinary circumstances beyond the prisoner's control made it impossible to file the petition on time. Allen v. Lewis, 255 F.3d 798, 799 (9th Cir. 2001); see also, Green v. White, 223 F.3rd 1001, 1003 (9th Cir. 2000).
In this case, the statute of limitation began to run (at the latest) on the day of petitioner's post conviction judgment. Therefore, petitioner had one year from January 16, 2001, to file his federal habeas corpus petition. Petitioner filed his petition in this proceeding on January 12, 2004. Petitioner has not alleged any facts that would establish entitlement to tolling of the limitations period.
Petitioner is allowed 30 days from the date of this order to show cause in writing why his petition should not be denied and this proceeding dismissed on the ground that it is time barred.
In addition, petitioner alleges that he alleged Fourteenth Amendment claims and claims "over sentencing" in his petition for post-conviction relief. In this proceeding he alleges due process and sentencing claims and ineffective assistance of counsel.
A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. Keeney v. Tamayo-Reyes, 112 S.Ct. 1715, 1720 (1992); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). A prisoner satisfies the exhaustion requirement by "fairly" presenting his claims to the highest state court with jurisdiction to consider them. Keeney, 112 S.Ct. at 1720; Picard v. Connor, 404 U.S. 270, 276 (1971). A prisoner fairly presents his claims by describing in the state court proceeding both the operative facts and the legal theory on which his claim is based. Anderson v. Hareless, 459 U.S. 4, 6 (1982);Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988); Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986).
"When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); Sawyer v. Whitley, 112 S.Ct. 2514, 2518 (1992); Keeney, 112 S.Ct. at 1718-19.
"`Cause' is a legitimate excuse for the default and `prejudice' is actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). In the extraordinary case, cause for procedural default may be established "where a constitutional violation has probably resulted in the conviction of one who is actually innocent."Murray v. Carrier, 477 U.S. 478, 496 (1986); Keeney, 112 S.Ct. at 1721; Noltie, 9 F.3d at 806.
Based on the record before the court, it appears that petitioner did not exhaust state remedies with respect to his claim of ineffective assistance of counsel and he has not alleged any cause and prejudice for his procedural default. Therefore, petitioner should also show cause within 30 days why his claim of ineffective assistance of counsel should not be dismissed on the ground that he failed to exhaust state remedies as to that claim.
Petitioner is advised that failure to show cause in writing as directed herein within 30 days of the date of this order will result in the dismissal of this proceeding for failure to prosecute.