United States District Court, N.D. California
July 22, 2004.
THEODORE HERRERA SR., Plaintiff,
D.K. BUTLER, Defendant.
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has
rendered its verdict.
(X) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that respondent's motion to
dismiss the petition as untimely is GRANTED, and judgment if
hereby entered accordingly.
ORDER GRANTING MOTION TO DISMISS
(Doc # 7)
Petitioner, a state prisoner incarcerated at Folsom State
Prison, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per
order filed on February 2, 2004, the court found that the claims
in the petition appeared cognizable under § 2254 and ordered
respondent to show cause why a writ of habeas corpus should not
be granted. Respondent instead filed a motion to dismiss the
petition as untimely under 28 U.S.C. § 2244(d). Petitioner has filed
Petitioner was convicted by a jury in the Superior Court of the
State of California in and for the County of Santa Clara as an
aider and abettor of robbery while armed with a handgun. It was
also found that petitioner had suffered two prior serious felony
convictions and, on January 9, 1999, he was sentenced to 31 years
to life pursuant to California's Three Strikes Law. On December 13, 2000, the California Court of Appeal affirmed
the judgment and denied a petition for a writ of habeas corpus.
On March 21, 2001, the Supreme Court of California denied
review of both decisions of the court of appeal.
On January 15, 2002, petitioner filed a federal petition for a
writ of habeas corpus in this court. But because he had a
petition of error coram nobis pending in state superior court at
the time he filed the federal petition, this court (Chesney, J)
promptly dismissed the federal petition without prejudice to
refiling "once all state court post-conviction challenges to his
conviction have been completed." Herrera v. Lamarque, No C
02-0243 MMC (PR), slip op at 1-2 (ND Cal Feb 20, 2002) (order).
On September 24, 2003, petitioner filed the instant federal
petition for a writ of habeas corpus alleging that his last state
court post-conviction challenge was denied on January 23, 2002.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") became law on April 24, 1996 and imposed for the first
time a statute of limitation 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). Time during which a properly filed
application for state post-conviction or other collateral review
is pending is excluded from the one-year time limit. Id §
A state prisoner with a conviction finalized after April 24,
1996, such as petitioner, ordinarily must file his federal habeas
petition within one year of the date his process of direct review
came to an end. See Calderon v. United States District Court
(Beeler), 128 F.3d 1283, 1286 (9th Cir 1997), overruled in part
on other grounds by Calderon v. United States District Court
(Kelly), 163 F.3d 530 (9th Cir 1998) (en banc). Here, because
petitioner did not seek a writ of certiorari from the Supreme
Court of the United States after the Supreme Court of California
denied review on March 21, 2001, his process of direct review
came to an end on June 19, 2001, when the time allotted for
filing a petition for a writ of certiorari expired. See Miranda
v. Castro, 292 F.3d 1063, 1065 (9th Cir 2002); Bowen v. Roe,
188 F.3d 1157, 1159 (9th Cir 1999). The one-year limitation period
accordingly began running against petitioner the next day, June
20, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir
2001) (calculating AEDPA's one-year limitation period according
to Federal Rule of Civil Procedure 6(a)). The instant petition
was not filed until September 24, 2003, however. It is untimely
unless the limitation period was tolled for a substantial period
Section 2244(d)(2) tolls the one-year limitation period 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). But
even if petitioner's state petition for a writ of error coram
nobis tolled the one-year limitation period until January 23,
2002, when the state petition was denied, the instant federal petition for a writ of
habeas corpus is nine months too late. Only equitable tolling can
save the petition.
The one-year limitation period may be equitably tolled if
"extraordinary circumstances beyond a prisoner's control make it
impossible to file a petition on time." Beeler, 128 F.3d at 1288
(citation and internal quotation marks omitted). The prisoner
"must show that the `extraordinary circumstances' were the cause
of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th
Cir 2003) (citations omitted). Equitable tolling is justified in
few cases. "Indeed, the threshold necessary to trigger equitable
tolling [under AEDPA] is very high, lest the exceptions swallow
the rule." Miranda, 292 F.3d at 1066 (citation and internal
quotation marks omitted).*fn1 Petitioner "bears the burden
of showing that this extraordinary exclusion should apply to
him." Id at 1065.
Petitioner claims that he is entitled to equitable tolling
because Judge Chesney did not warn him "about the statute of
limitations" when she dismissed his first federal petition. Not
so. The Supreme Court recently made clear that no such warning is
required. See Pliler v. Ford, 124 S Ct 2441, 2446-47 (2004). And
petitioner's pro se status and ignorance of the law are not
extraordinary circumstances warranting equitable tolling either.
See Felder v. Johnson, 204 F.3d 168, 172-73 & n10 (5th Cir 2000) (mere ignorance of the law or
lack of knowledge of filing deadlines does not justify equitable
tolling of AEDPA's limitation period); Cantu-Tzin v. Johnson,
162 F.3d 295, 299-300 (5th Cir 1998) (pro se status during state
habeas proceedings did not justify equitable tolling); Hughes v.
Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir 1986)
(illiteracy of pro se petitioner not sufficient cause to avoid
Petitioner also claims that his delay should be excused because
he has "end-stage liver disease." Although petitioner's illness
probably made it more difficult for him to file his petition on
time, it cannot be said that it made it impossible for him to do
so. As petitioner himself states, "had the district court
informed [me] of the statute of limitations, [I] would have made
arrangement[s] for all legal deadlines to be honored on time to
meet the AEDPA's one-year statute of limitations." Petitioner's
illness was not the cause of his untimeliness. See Spitsyn, 345
F.3d at 799.
Petitioner has not met his burden of showing that equitable
tolling should apply to him. See Miranda, 292 F.3d at 1066-68.
For the foregoing reasons, respondent's motion to dismiss the
petition as untimely (doc # 7) is GRANTED.
The clerk shall enter judgment in favor of respondent and close