Opinion
CASE NO. SA CV 11-1869-CAS (PJW)
12-08-2011
PEDRO MUNOS ORTEGA, Petitioner, v. B. PHILLIPS, WARDEN, Respondent.
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED
On December 5, 2011, Petitioner filed a Petition for Writ of Habeas Corpus, seeking to challenge his July 2007 state conviction and sentence, following a guilty plea, for burglary and receiving stolen property. (Petition at 2.) In the Petition, he claims that his trial counsel provided ineffective assistance by failing to: 1) investigate before Petitioner entered his guilty plea; 2) file a suppression motion; and 3) file a notice of appeal. (Petition at 5-6.) 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). A district court may examine the timeliness of a petition sua sponte. See Day v. McDonough, 547 U.S. 198, 209-10 (2006). Here, Petitioner's conviction became final on September 18, 2007--60 days after Petitioner was sentenced and the time expired for him to file an appeal. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); Lewis v. Mitchell, 173 F. Supp.2d 1057, 1060 (C.D. Cal. 2001). Therefore, the statute of limitations expired one year later, on September 18, 2008. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner did not file this Petition until December 2011, more than three years after the deadline. Absent statutory or equitable tolling, the Petition is untimely and must be dismissed.
IT IS THEREFORE ORDERED that, no later than January 6, 2012, 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.
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE