Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SAYLOR v. KANE

December 15, 2005.

JAMES L. SAYLOR, Petitioner,
v.
ANTHONY KANE, Acting Warden, Respondent(s).



The opinion of the court was delivered by: CHARLES BREYER, District Judge

ORDER GRANTING MOTION TO DISMISS (Doc # 6)

Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on May 17, 2005, the court noted that the petition appears untimely and ordered respondent to move to dismiss the petition on the ground that it is untimely, or otherwise inform the court that respondent is of the opinion that a motion to dismiss is unwarranted in this case. Respondent filed a motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d). Petitioner filed an opposition arguing that he is entitled to equitable tolling and delayed commencement of the pertinent limitation period, and respondent filed a reply. BACKGROUND

Petitioner was convicted of second degree murder by jury in the Superior Court of the State of California in and for the County of San Mateo. Allegations that petitioner used a firearm and caused great bodily injury were also found to be true. On October 22, 1992, petitioner was sentenced to 20 years to life.

  On July 21, 1994, the California Court of Appeal affirmed the judgment of the superior court and, on November 16, 1994, the Supreme Court of California denied review.

  Petitioner did not seek further review until June 16, 2003, when he began seeking collateral relief from the state courts by filing a petition for a writ of habeas corpus in the Superior Court of the State of California in and for the County of Monterey. It was denied on June 20, 2003.

  On December 9, 2003, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on December 18, 2003.

  On February 13, 2004, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of California. It was denied on December 15, 2004.

  On February 24, 2005, petitioner filed the instant federal petition.

  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: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) 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).

  AEDPA's one-year limitation period did not start to run earlier than April 24, 1996. A state prisoner with a conviction finalized before April 24, 1996, such as petitioner, therefore generally had until April 23, 1997 to file his federal habeas petition. See Calderon v. United States District Court (Beeler), 128 F.3d 1283, 1287 (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). The instant petition was not filed until February 24, 2005, 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). Unfortunately for petitioner, by the time he filed his first state habeas petition on June 16, 2003, the one-year limitation period had long expired on April 24, 1997. A state habeas petition filed after AEDPA's statute of limitation ended cannot toll the limitation period under § 2244(d)(2). See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully run. "Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations." Rashid v. Kuhlmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998).

  Petitioner claims he is entitled to equitable tolling of the limitation period because he lacked the necessary legal and educational skills to understand the provisions of AEDPA and file his petition on time. He also claims that he is entitled to delayed commencement of the limitation period under § 2244(d)(1)(B) because he was incorrectly advised by prison-assigned inmate legal clerks that his case was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.