“section 2244(d) does not permit the reinitiation of the 27 limitations period that has ended before the state petition was filed”
How later courts described this case
- “section 2244(d) does not permit the reinitiation of the 27 limitations period that has ended before the state petition was filed”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 ALFONSO ARANDA, Case No. 2:21-cv-04958-MCS (AFM)
12 Petitioner,
ORDER TO SHOW CAUSE WHY
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v. PETITION SHOULD NOT BE
14 DISMISSED
GAVIN NEWSOM, et. al,
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Respondents.
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18 Petitioner, a state prisoner, filed this petition for writ of habeas corpus on
19 June 13, 2021.1 The petition challenges Petitioner’s 2001 conviction on the ground
20 that his confinement is unlawful because the murder charges were brought via an
21 information rather than a grand jury indictment. (ECF 1.) For the following reasons,
22 it appears that the petition is subject to dismissal.
23 A. The petition appears to be untimely.
24 State prisoners have one-year to file a federal application for writ of habeas
25 corpus. 28 U.S.C. § 2244(d)(1). In most cases, the limitation period begins to run
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1 Although the petition was stamped filed by the Clerk’s Office on June 17, 2021, Petitioner is
27 entitled to the benefit of the “mailbox rule,” pursuant to which a petition is deemed filed on the date
on which it was handed it to the proper prison official for mailing. See Houston v. Lack, 487 U.S.
28 266, 276 (1988).
1 from “the date on which the judgment became final by the conclusion of direct review
2 or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
3 Petitioner was convicted on March 1, 2001. (ECF 1 at 2.) The California Court
4 of Appeal affirmed the conviction on December 6, 2001, and the California Supreme
5 Court denied review on February 13, 2002. See People v. Aranda, No. B149427,
6 2001 WL 1556083, at *1 (Cal. Ct. App. Dec. 6, 2001). Petitioner’s conviction became
7 final on May 14, 2022, when the time for filing a petition for a writ of certiorari in
8 the United States Supreme Court elapsed. See Brown v. Roe, 188 F.3d 1157, 1158-
9 1159 (9th Cir. 1999). Absent tolling, the one-year limitation period expired one year
10 later on May 14, 2003. Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.
11 2001).
12 Tolling
13 The one-year limitation period is “statutorily tolled” while a “properly filed
14 application for State post-conviction or other collateral review with respect to the
15 pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). This provision tolls
16 the statute for the time during which a state prisoner is attempting, through proper
17 use of state court procedures, to exhaust state court remedies with regard to his
18 claims, through a particular post-conviction petition or application. The statute is not
19 tolled between the time a final decision is issued on direct review and the time the
20 first state collateral challenge is filed, because there is no case “pending” during that
21 time. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
22 Here, there is no indication that statutory tolling applies. The state court habeas
23 denials attached to the petition show that Petitioner sought state habeas relief in 2020
24 – long after the one-year period ended. (See ECF 1 at 14-22.) Accordingly, these state
25 petitions do not toll the limitation period. See Ferguson v. Palmateer, 321 F.3d 820,
26 823 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the
27 limitations period that has ended before the state petition was filed”).
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1 The limitation period also can be equitably tolled. In order to warrant equitable
2 tolling, a petitioner must demonstrate (1) that he has been pursuing his rights
3 diligently, and (2) that an “extraordinary circumstance” stood in his way that
4 prevented him from timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010)
5 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The “extraordinary
6 circumstance” requirement “suggests that an external force must cause the
7 untimeliness, rather than ... merely oversight, miscalculation or negligence on [the
8 petitioner’s] part, all of which would preclude the application of equitable tolling.”
9 Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (internal
10 quotation marks and citation omitted). “The petitioner must additionally show that
11 the extraordinary circumstances were the cause of his untimeliness, and that the
12 extraordinary circumstances made it impossible to file a petition on time.” Ramirez
13 v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (citations, internal quotations marks, and
14 brackets omitted). Petitioner does not allege, and nothing suggests, that he is entitled
15 equitable tolling for the 18 years during which he apparently took no action in attempt
16 to raise his claim.
17 Delayed Accrual
18 The commencement of the limitation period can be delayed if the petitioner
19 was prevented from filing by unconstitutional state action; if the petitioner is
20 asserting a claim based on a right newly recognized by the Supreme Court and made
21 retroactive to cases on collateral review; or if the factual predicate of the claim could
22 have been discovered through the exercise of due diligence. 28 U.S.C.
23 § 2244(d)(1)(B)-(D). The limitation period is tolled for the time during which a
24 properly filed application for State post-conviction or other collateral review is
25 pending. 28 U.S.C. § 2244(d)(2). Petitioner was convicted and sentenced more than
26 twenty years ago. Petitioner has not argued, and the record does not suggest, that he
27 is entitled to delayed commencement of the limitation period or tolling of the
28 limitations period. Notably, Petitioner’s claim is not based on a right newly
1 recognized by the Supreme Court and made retroactive to cases on collateral review.
2 Further, Petitioner necessarily was aware of the factual predicate of his claim at the
3 time he was charged by Information rather than by a grand jury indictment.
4 B. The petition fails to raise a cognizable claim.
5 Petitioner raises a single claim: He alleges that his state criminal prosecution
6 was unlawful because the charges were brought via an information, and not a grand
7 jury indictment. The grand jury requirement of the Fifth Amendment, however, is
8 not applicable to the states, and accordingly, prosecution via an information is not
9 unconstitutional. Alexander v. Louisiana, 405 U.S. 625, 633 (1972); James v. Reese,
10 546 F.2d 325, 327–328 (9th Cir. 1976). Thus, the failure of the state to proceed on
11 an indictment does not raise a federal question. See Escamilla v. Diaz, 2021 WL
12 1225977, at *1–2 (C.D. Cal. Apr. 1, 2021) (dismissing petition, explaining in part
13 that, “petitioner’s sole claim in the Petition alleging his state criminal prosecution
14 was unlawful because the charges were brought via a felony complaint, and not a
15 grand jury indictment, does not present a federal question”), appeal filed, April 22,
16 2021 (9th Cir. Case No. 21-55398); Caisse v. Mattheson, 2020 WL 5760284, at *2
17 (N.D. Cal. Sept. 28, 2020) (“the failure to obtain grand jury indictment prior to
18 charging petitioner does not raise a question of federal law and is not cognizable on
19 habeas review”).
20 For the foregoing reasons, Petitioner is ORDERED TO SHOW CAUSE
21 why this action should not be dismissed as (1) untimely and (2) for failure to state
22 a cognizable claim. Petitioner may discharge this Order by filing a Response on or
23 before July 23, 2021. With respect to the timeliness of the petition, if Petitioner
24 contends that he is entitled to a later date of accrual (i.e., that unconstitutional state
25 action prevented him from timely filing a petition or that he could not have
26 discovered the factual predicate of his claims until a certain date after his conviction
27 became final) or that he is entitled to equitable tolling, Petitioner must describe
28 specifically the nature and duration of any circumstances which he believes impeded
1 || his ability to timely file his petition. All facts relied upon by Petitioner must be proved
2 || by testimony contained in a declaration signed under penalty of perjury, see 28
3 | U.S.C. §1746, or in properly authenticated documents.
4 Finally, Petitioner is cautioned that his failure to timely file a response to
5 | this Order by July 23, 2021 may result in the dismissal of this petition for the
6 || reasons set forth above, or for failure to prosecute and failure to comply with a
7 || court order. See Fed. R. Civ. P. 41(b); C.D. Cal. Local Civil Rule 41-1.
8 IT IS SO ORDERED.
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10 || DATED: 6/29/2021 (Wy
"ALEXANDER F. MacKINNON__
12 UNITED STATES MAGISTRATE JUDGE
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