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April 21, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge


The court having entered a ruling today dismissing the petition for a writ of habeas corpus, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.


(Doc 4, 5 & 6)

This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss on grounds the petition is barred by the statute of limitations. Petitioner has filed an opposition and respondent a reply. The motion is submitted.


The statute of limitations is codified at 28 U.S.C. § 2244 (d). Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

In 1997 petitioner pleaded guilty to one count of continuous sexual abuse of a child under fourteen. See Cal. Pen. Code § 288.5. On August 27, 1997, he was sentenced to prison for twelve years. He did not appeal. The conviction and sentence became final on October 27, 1997, when the time to appeal expired. The time to file this petition thus expired on October 27, 1998, absent tolling or a different starting date for the limitations period.

This petition was filed in the United States District Court for the Central District of California on August 27, 2002, long after the deadline. However, petitioner did file several attempts to attack the judgment in state court which might toll the running of the limitations period. See 28 U.S.C. § 2244(d)(2) (time during which properly filed application for state post-conviction or other state collateral review is pending excluded from one-year time limit).

The following dates, supplied by respondeat, are supported by the exhibits and are not disputed by petitioner. Petitioner filed a notice of appeal on August 10, 1998, but it was rejected as ten months late. On October 21, 1998, he filed a petition for writ of mandate seeking leave to file a late notice of appeal. It was denied on October 28, 1998. On October 18, 1999, he filed a petition for a writ of habeas corpus in state superior court. On November 3, 1999, he filed a state petition in the California Court of Appeal. The court of appeal petition was denied on November 10, 1999, and the superior court petition was denied on December 12, 1999. On February 15, 2000, he filed a petition in the California Supreme Court, and on April 21, 2000, another petition in the California Court of Appeal. The supreme court denied the petition on April 26, 2000. On June 16, 2000, the court of appeals denied the petition filed in that court. Another petition was filed in the supreme court on May 20, 2001, and denied on November 28, 2001.

Three hundred and sixty days passed between petitioner's sentencing and his first collateral attack, his petition for a writ of mandate filed in the court of appeal on October 21, 1998. The present federal petition was not filed until August 27, 2002, approximately nine months after denial of petitioner's last state court petition on November 28, 2001. Therefore, even if all the time is tolled between October 21, 1998, and the date petitioner's last state petition was denied, November 28, 2001, respondent is correct that this petition is untimely.

In his opposition to the motion to dismiss petitioner contends that he can show "cause and prejudice" for the delay. This is not grounds for avoiding the statute of limitations, but the Court will construe his contention as a request for equitable tolling. Petitioner has failed to make out a factual basis for his contention that after sentencing he suffered such mental distress that he could not file on time; as the respondent points out, he managed to file a great many state petitions in that time, and if he had filed this federal petition without the long gap after his last state petition was denied it might have been timely. This suggests it was not his mental condition after sentencing that was the cause of the delay. Petitioner has also failed to provide anything more than unsupported allegations regarding the actions of his lawyer as they might bear on possible equitable tolling.

Petitioner also contends that he is innocent. An adequate showing of actual innocence might avoid the effect of the statute of limitations see Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002), but petitioner is far from making such a showing. He provides no more than unsupported assertions that he did not abuse the victim when she was between five and ten years old, and the offenses against ...

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