The opinion of the court was delivered by: Susan Illston, United States District Judge
The petition is dismissed because it was not timely filed
IT IS SO ORDERED AND ADJUDGED.
James Hines, a California prisoner at the High Desert State Prison in Susanville, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1999 conviction. This matter is now before the court for consideration of respondent's motion to dismiss the petition as untimely. The court finds that the petition was not filed by the deadline in 28 U.S.C. § 2244 (d) and therefore will dismiss the petition as untimely.
James Hines pled no contest and was convicted in the Alameda County Superior Court of voluntary manslaughter and was found to have personally used a firearm in the commission of the offense. On August 26, 1999, he was sentenced to fourteen years in state prison. He did not appeal his conviction.
More than two years later, Hines sought collateral review in the state courts. On November 6, 2001, Hines filed a petition for writ of habeas corpus in the California Court of Appeal. The petition was denied on November 15, 2001. On February 20, 2002, Hines filed a petition for writ of habeas corpus in the California Supreme Court. That petition was denied on June 12, 2002.
Hines then filed this action. His petition was mailed in an envelope bearing a July 18, 2002 postmark and was stamped "filed" at this court on July 23, 2002.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. 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).
Ordinarily, the starting date of the limitations period is the date on which the judgment becomes final after the conclusion of direct review or the time passed for seeking direct review. See 28 U.S.C. § 2244(d)(1). Because Hines did not appeal his judgment of conviction, it became final by conclusion of direct review sixty days after the date he was sentenced, when the time for filing a notice of appeal expired. See Cal. Rule of Court 31(d). Hines' judgment of conviction became final on October 25, 1999, sixty days after his sentencing on August 26, 1999. Absent any tolling, the federal petition had to be filed by October 25, 2000, to be timely. The federal petition was not deemed filed until July 18, 2002, about twenty-one months after the deadline. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001) (pro se prisoner's federal habeas petition is deemed filed when prisoner delivers petition to prison authorities for mailing), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002). The court will not use a delayed start date for the limitations period under § 2244(d)(1)(B) because Hines did not support his conclusory allegation of prison lockdowns with any showing that the lockdowns were "in violation of the Constitution or laws of the United States" or that the lockdowns actually prevented the timely filing of the petition.
The one-year statute of limitations will be tolled under § 2244(d)(2) for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244 (d)(2). Hines receives no statutory tolling for his state habeas petitions because they were not filed until after the one year period had expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed," even if the state petition was timely filed) (holding that Oregon's two-year limitation period for the filing of state habeas petitions does not alter the operation of the AEDPA, even ...