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United States District Court, N.D. California

March 9, 2004.

DIANA BUTLER, warden, Respondent

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge



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 Page 2 Supreme Court on August 11, 1997, which was denied on September 17, 1997.

  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 § 2244(d)(1)(A).

  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 after Page 3 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 Page 4 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 received one.

  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 Page 5 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.


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