Opinion
CASE NO. CV 14-3342-ODW (PJW)
05-01-2014
RIGOBERTO MARTINEZ, Petitioner, v. MARTIN BITER, WARDEN, Respondent.
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED
On April 30, 2014, Petitioner filed a Petition for Writ of Habeas Corpus, seeking to challenge a 2008 conviction in Los Angeles Superior Court for attempted murder and resultant sentence of life plus 25 years in state prison. (Petition at 2.) Petitioner contends that the victim of the attempted murder has now recanted his trial testimony and that appellate counsel was ineffective for failing to argue that trial counsel's representation was ineffective and that Petitioner was subjected to a coercive interrogation. (Petition at 4-5.)
For the following reasons, Petitioner is ordered to show cause why his Petition should not be dismissed because it is time-barred. State prisoners seeking to challenge their state convictions in federal habeas corpus proceedings are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). Here, Petitioner's conviction became final on May 17, 2011--90 days after the California Supreme Court denied his petition for review and the time expired for him to a petition for writ of certiorari in the United States Supreme Court. See, e.g., Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir. 2005). Therefore, the statute of limitations expired one year later, on May 17, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner, however, did not file this Petition until April 30, 2014, nearly two years after the deadline.
Although Petitioner filed a petition for writ of habeas corpus in this Court on May 16, 2012, which was subsequently dismissed without prejudice on April 8, 2013, that filing did not toll the statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (holding federal habeas petition does not toll limitation period).
IT IS THEREFORE ORDERED that, no later than June 2, 2014, Petitioner shall inform the Court in writing why this case should not be dismissed with prejudice because it is barred by the statute of limitations. Failure to timely file a response will result in a recommendation that this case be dismissed.
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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE