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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 ABLE FREDDIE JOHNSON, ) Case No. 2:21-cv-09661-FLA-JC ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THIS ACTION SHOULD NOT BE ) DISMISSED AS TIME-BARRED 14 W. MONTGOMERY, ) ) 15 ) Respondent. ) 16 17 On or about December 10, 2021, petitioner constructively filed a Petition for 18 Writ of Habeas Corpus by a Person in State Custody (“Petition”), which was 19 formally filed on December 13, 2021.1 20 Pursuant to 28 U.S.C. § 2244(d), a one-year statute of limitations applies to a 21 petition for a writ of habeas corpus by a person in state custody. The limitation 22 period runs from the latest of: (1) the date on which the judgment became final by 23 the conclusion of direct review or the expiration of the time for seeking such 24 review; (2) the date on which the impediment to filing an application created by 25 State action in violation of the Constitution or laws of the United States is 26 27 1Petitioner’s signature on the Petition is undated and the Petition is not accompanied by a proof of service. The Petition was in an envelope postmarked December 10, 2021, and was received 28 by the Clerk on December 13, 2021. 1 1 removed, if the applicant was prevented from filing by such State action; (3) the 2 date on which the constitutional right asserted was initially recognized by the 3 Supreme Court, if the right has been newly recognized by the Supreme Court and 4 made retroactively applicable to cases on collateral review; or (4) the date on 5 which the factual predicate of the claim or claims presented could have been 6 discovered through the exercise of due diligence. 7 In this case, it appears that petitioner had one year from the date his 8 conviction became final to file a federal habeas petition. Petitioner’s conviction 9 became final on December 10, 2019, i.e., ninety (90) days after the California 10 Supreme Court denied his petition for review on September 11, 2019 – when 11 petitioner’s time to file a petition for certiorari with the United States Supreme 12 Court expired.2 See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) 13 (period of direct review in 28 U.S.C. § 2244(d)(1)(A) includes ninety-day period 14 within which petitioner can file petition for writ of certiorari in United States 15 Supreme Court, whether or not petitioner actually files such petition). Therefore, 16 the statute of limitations commenced to run on December 11, 2019 and absent 17 tolling, expired on December 10, 2020 – more than a year before petitioner filed 18 the instant Petition. 19 Title 28 U.S.C. § 2244(d)(2) provides that the “time during which a properly 20 filed application for State post-conviction or other collateral review with respect to 21 the pertinent judgment or claim is pending shall not be counted toward” the one- 22 23 2The Petition incorrectly reflects that petitioner’s petition for review to the California 24 Supreme Court bore the same case number and had the same disposition date as his direct appeal to the California Court of Appeal. (Petition at 2-3 (reflecting that both petitioner’s appeal to the 25 California Court of Appeal and petition for review to the California Supreme Court bore Case No. B289925 and were decided on June 26, 2019)). This Court takes judicial notice of the docket for 26 California Supreme Court Case No. S257083 which reflects that petitioner’s petition for review was 27 filed in such court on July 29, 2019 and that it was denied on September 11, 2019. See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial 28 notice of undisputed matters of public record including documents on file in federal or state courts). 2 1 || year statute of limitations period. Petitioner “bears the burden of proving that the 2 || statute of limitations was tolled.” Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 3 || 2010), cert. denied, 131 S. Ct. 3023 (2011). Here, petitioner is not entitled to 4 || statutory tolling because he has not filed any application for State post-conviction 5 || or other collateral review with respect to the judgment in issue. (Petition at 3 6 || (indicating petitioner has not previously filed any habeas petitions in state court 7 || with respect to the judgment/conviction in issue)). Accordingly, statutory tolling 8 || does not render the Petition timely filed. 9 In addition to statutory tolling, the limitations period may also be subject to 10 || equitable tolling if petitioner can demonstrate both that: (1) he has been pursuing 11 || his rights diligently; and (2) some extraordinary circumstance stood in his way. 12 | Holland v. Florida, 560 U.S. 631, 649 (2010). It is a petitioner’s burden to 13 || demonstrate that he is entitled to equitable tolling. Miranda v. Castro, 292 F.3d 14 | 1063, 1065 (9th Cir.), cert. denied, 537 U.S. 1003 (2002). Here, it does not appear 15 || from the face of the Petition and supporting documents that petitioner has met such 16 || burden. 17 Finally, in rare and extraordinary cases, a plea of actual innocence can serve 18 || as a gateway through which a petitioner may pass to overcome the statute of 19 | limitations otherwise applicable to federal habeas petitions. McQuiggin v. Perkins, 20 | 133 S. Ct. 1924, 1928 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th 21 || Cir. 2011) (en banc). “[A] petitioner does not meet the threshold requirement 22 || unless he [or she] persuades the district court that, in light of the new evidence, no 23 || juror, acting reasonably, would have voted to find him [or her] guilty beyond a 24 || reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995). In 25 || order to make a credible claim of actual innocence, a petitioner must “support his 26 || allegations of constitutional error with new reliable evidence — whether it be 27 || exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 28 || physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. The

1 habeas court then “consider[s] all the evidence, old and new, incriminating and 2 exculpatory, admissible at trial or not.” Lee, 653 F.3d at 938 (internal quotations 3 omitted; citing House v. Bell, 547 U.S. 518, 538 (2006)). On this record, the court 4 “must make a ‘probabilistic determination about what reasonable, properly 5 instructed jurors would do.’” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 6 329). Unexplained or unjustified delay in presenting new evidence is a “factor in 7 determining whether actual innocence has been reliably shown.” Perkins, 133 S. 8 Ct. at 1928, 1935; Schlup, 513 U.S. at 332 (“A court may consider how the timing 9 of the submission and the likely credibility of a [petitioner’s] affiants bear on the 10 probable reliability of . . . evidence [of actual innocence].”). Here, petitioner has 11 not submitted new, reliable evidence to cast doubt on his conviction to permit the 12 Court to consider his apparently otherwise time-barred claims. 13 For the reasons discussed above, based upon the Petition as currently 14 submitted, 28 U.S.C. § 2244(d)(1) appears to bar this action. Petitioner is therefore 15 ORDERED TO SHOW CAUSE within twenty (20) days of the date of this Order, 16 why this action should not be dismissed as time-barred. 17 Instead of filing a response to the instant Order to Show Cause, petitioner 18 may request a voluntary dismissal of this action pursuant to Federal Rule of Civil 19 Procedure 41(a). If he elects to proceed in that manner, he may sign and return the 20 attached Notice of Dismissal. However, petitioner is advised that any dismissed 21 claims may later be subject to dismissal as time-barred under 28 U.S.C. 22 § 2244(d)(1). 23 Petitioner is cautioned that the failure timely to respond to this Order to 24 Show Cause may result in the dismissal of this action with prejudice based upon 25 /// 26 /// 27 /// 28 /// 4 1 petitioner’s claims being time-barred, petitioner’s failure to comply with the 2 Court’s order, and/or petitioner’s failure to prosecute. 3 IT IS SO ORDERED. 4 DATED: December 17, 2021 5 6 _____________/s/____________________ 7 Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

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