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HERRERA v. BUTLER

United States District Court, N.D. California


July 22, 2004.

THEODORE HERRERA SR., Plaintiff,
v.
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 an opposition.

  BACKGROUND

  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.

  DISCUSSION

  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 § 2244(d)(2).

  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 of time.

  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 procedural bar).

  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.

  CONCLUSION

  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 the file.

  SO ORDERED.


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