Alejandro Alve v. Gavin Newson, 3:21-cv-00349

Petitioner Alejandro Alve was convicted in 1976 of two counts of first‑degree murder (initially sentenced to death; sentence later reduced to seven years‑to‑life) and underwent a 1979 sanity retrial.
Alve contends his confinement is unlawful because the State proceeded by information rather than grand‑jury indictment.
He previously filed a federal habeas petition in 1999 that the Central District of California dismissed as untimely.
In July 2020 Alve filed a state habeas petition asserting the same indictment/information claim; the Superior Court denied it as successive and meritless, and the state appellate court found it untimely and meritless.
Alve filed the instant § 2254 petition in February 2021; Respondents moved to dismiss as untimely and successive.
The magistrate judge recommends granting the motion to dismiss for lack of timeliness and for being a second/successive petition (and therefore beyond the district court’s jurisdiction absent Ninth Circuit authorization).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under AEDPA limitations	Alve argues a state‑created impediment (conduct at his 1979 retrial and withheld test results) prevented earlier filing, creating an exception to AEDPA timing	Petition is governed by AEDPA; conviction final long before AEDPA, so petition filed far after the April 23, 1997 deadline; state courts already found claim untimely	Petition is untimely; no state impediment shown; equitable tolling not warranted
Equitable tolling / delayed accrual (§ 2244(d)(1)(B))	Alve contends prosecutorial/test evidence conduct impeded his ability to appeal and thus delayed accrual	No showing that state action actually prevented filing a federal petition or diligent pursuit of rights	Equitable tolling and delayed accrual not available; Alve did not meet the high burden for extraordinary circumstances
Second or successive petition / jurisdiction	Alve did not obtain Ninth Circuit authorization to file a successive petition	Prior 1999 federal petition was dismissed as untimely (a merits‑equivalent disposition); the new petition challenges the same conviction and raises a claim that was knowable earlier	Petition is second/successive; district court lacks jurisdiction absent prior circuit authorization; dismissal recommended

Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999) (AEDPA limits for convictions finalized before enactment)
Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 128 F.3d 1283 (9th Cir. 1997) (AEDPA one‑year limitation did not run before enactment)
Walker v. Martin, 562 U.S. 307 (2011) (state procedural timeliness can be independent and adequate bar)
Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009) (delayed accrual where state action creates an unconstitutional impediment)
Holland v. Florida, 560 U.S. 631 (2010) (standards for equitable tolling: diligence and extraordinary circumstances)
Miranda v. Castro, 292 F.3d 1063 (9th Cir. 2002) (equitable tolling standard is strict)
United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000) (illustrating high threshold for equitable tolling)
Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005) (petitioner bears burden to show equitable tolling)
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (dismissal on statute‑of‑limitations grounds is a merits‑equivalent judgment)
McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009) (statute‑of‑limitations dismissal renders later petitions second or successive)
Woods v. Carey, 525 F.3d 886 (9th Cir. 2008) (new petition is successive if it raises claims that were or could have been adjudicated earlier)
Burton v. Stewart, 549 U.S. 147 (2007) (district courts lack jurisdiction to consider merits of second or successive petitions without circuit authorization)