United States District Court, N.D. California
March 9, 2004.
RICHARD ALLEN APPLEBY, Petitioner,
DIANA BUTLER, warden, Respondent
The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge
ORDER OF DISMISSAL
Richard Alien Appleby, a California prisoner incarcerated at Folsom
State Prison, filed this pro se action seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent's motion to dismiss
the petition as untimely is now before the court for its consideration.
For the reasons discussed below, the court will grant the motion and
dismiss the untimely petition.
Appleby alleged in his petition that he was convicted in the Santa
Clara County Superior Court of attempted kidnapping, making terrorist
threats, assault with force likely to produce great bodily injury.
Sentence enhancement allegations were found true. On June 25, 1996, he
was sentenced to 55 years to life in prison. He appealed. The California
Court of Appeal affirmed the conviction but remanded for resentencing.
The resentencing occurred on September 10, 1997. Meanwhile, Appleby filed
a petition for review in the California
Supreme Court on August 11, 1997, which was denied on September 17,
Appleby filed unsuccessful petitions for writ of habeas corpus in state
court. His habeas petition in the California Court of Appeal was filed
July 12, 2002 and denied on September 6, 2002. His habeas petition in the
California Supreme Court was filed on September 20, 2002 and denied on
June 11, 2003.
The petition in this action arrived at the court in an envelope
postmarked September 12, 2003, and was stamped "filed" at this court on
September 15, 2003.
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). The ordinary starting date of the limitations
period is the date on which the judgment became final after the
conclusion of direct review or the time passed for seeking direct review.
See 28 U.S.C. § 2244(d)(1).
The court has considered Appleby's arguments for alternate starting
dates for the limitations period under subsections (B), (C) and (D) of
§ 2244(d)(1) and finds all of them wholly unconvincing. The proper
starting point for the limitations period for Appleby is governed by
Appleby's state conviction became final on December 16, 1997, ninety
days after the Supreme Court denied review. 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
the California Supreme Court denied review); Bowen v.
Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (same). Absent any tolling,
the federal petition had to be filed by December 16, 1998, to be timely.
The federal petition was not deemed filed until September 12, 2003,
almost five years after the presumptive 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).
Appleby is not entitled to any statutory tolling because his first state
habeas petition was not filed until July 12, 2002, several years after
the one-year limitation period had already expired. A state habeas
petition filed after AEDPA's statute of limitations period has ended
cannot revive or toll the limitation period. 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); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.
2001), cert. denied. 123 S.Ct. 1627 (2003) (same)
The final step is to determine whether equitable tolling applies.
Equitable tolling of the limitation period is available upon a showing of
extraordinary circumstances beyond a petitioner's control which prevented
him from timely filing the petition. See, e.g., Calderon v. United
States District Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997)
(equitable tolling will not be available in most cases because extensions
of time should only be granted if extraordinary circumstances beyond
prisoner's control make it impossible for him to file petition on time),
cert. denied, 523 U.S. 1, and cert denied,
523 U.S. 1061 (1998), overruled
in part on other grounds by Calderon v. United States District
Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert.
denied, 526 U.S. 1060 (1999).
Appleby receives no equitable tolling due to the fact that he did not
know he did not have all of the opinion from the California Court of
Appeal because his attorney apparently made a photocopying error and sent
him only the even-numbered pages of the opinion. First, not bothering to
look for several years to determine whether one received the entire
opinion is inexcusable neglect by the prisoner and not an extraordinary
circumstance beyond his control. There are many pages in the lengthy
opinion on which sentences run from one page to the next. Any reasonable
person reading an opinion containing just the even-numbered pages would
have been on notice to try to figure out why so many sentences that ran
from page to page made no sense. Since the opinion was paginated at the
bottom of each page, even the most casual review would have quickly
revealed the photocopying problem. Second, the California Court of
Appeal's opinion is attached as a copy of the petition for review filed
by counsel and sent to petitioner. Appleby assertion that he was amazed
to learn only recently that the opinion was attached to the petition for
review demonstrates either an extraordinary lack of diligence or outright
dishonesty neither of which is grounds for equitable tolling.
Third, Appleby does not explain why he did not ask for a complete copy of
the opinion from his counsel or from the California Court of Appeal and
has not shown that, if he bothered to ask for a copy, he would not have
The actual innocence gateway established in Schlup v. Delo,
513 U.S. 298 (1995), may be available to a petitioner whose petition is
otherwise barred by AEDPA's limitations period. See Majoy. Roe.
296 F.3d 770, 776-77 (9th Cir. 2002) (implying that unavailability of
actual innocence gateway would raise serious constitutional concerns and
remanding to district court for a determination of whether actual
innocence claim was established before deciding whether gateway is
available under AEDPA). Appleby's bare assertion of his actual innocence
is not enough to bring him within the exception for the actually innocent
petitioner. Indeed, Appleby made admissions inconsistent with innocence
in his petition when he argued that his assault with a deadly weapon
conviction should be set aside because
teeth do not constitute a deadly weapon as a matter of law
a claim in which he admitted he "threatened to bite the victim's finger
if she did not return his ring," Petition, p. 8, and, in another claim
about the legality of California's 3-strikes law alleged that he "was
acting irrationally, in a highly charged emotional state and he was not
able to maturely deal with the break-up with his ex-girlfriend. . . . At
most [his ex-girlfriend] suffered an indignity that she herself
instigated by jilting Petitioner who bit her pinkie, not even breaking
the skin, in a fit of pique," Petition, p. 12. The allegations of the
petition are not consistent with actual innocence, and Appleby's naked
assertion of innocence in his opposition brief is not enough to get him
through the actual innocence gateway for the consideration of otherwise
barred claims. He is not entitled to equitable tolling on this ground.
Appleby's petition thus was inexcusably late and is barred by
28 U.S.C. § 2244(d)(1).
For the foregoing reasons, respondent's motion to dismiss the petition
as untimely is GRANTED. (Docket #5.) The petition for writ of habeas
corpus is dismissed because it was not filed by the deadline under
28 U.S.C. § 2244(d). The clerk shall close the file.
IT IS SO ORDERED.