The opinion of the court was delivered by: Susan Illston, United States District Judge
The petition for writ of habeas corpus is dismissed because it was not timely filed
IT IS SO ORDERED AND ADJUDGED.
James Lewis Houston, a California prisoner at the California Correctional Center in Susanville, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 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 Lewis Houston was convicted at a jury trial in the Contra Costa County Superior Court of second degree murder and was found to have used a gun during the commission of the offense. On October 30, 1998, he was sentenced to a term of 18 years to life in state prison.
Houston appealed and filed a petition for writ of habeas corpus. His habeas petition was consolidated with his direct appeal by the California Court of Appeal. The California Court of Appeal affirmed the judgment of conviction on November 16, 2000. Houston's petition for review was denied by the California Supreme Court on February 28, 2001.
The current federal habeas petition was signed on October 4, 2002 and stamped "filed" in this court on November 5, 2002. There is no visible postmark on the envelope in which the petition was mailed to the court.
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 of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The ordinary 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).
Houston's petition for review was denied by the California Supreme Court on February 28, 2001, and his conviction became final ninety days thereafter, on May 29, 2001, when the time for seeking a petition for writ of certiorari expired. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review). Absent any tolling, the federal petition had to be filed by May 29, 2002, to be timely. The federal petition was not deemed filed until November 5, 2002, about five months after the deadline.*fn1
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). Houston receives no statutory tolling for his state habeas petition because it was filed ...