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Stewart v. Sisto


August 4, 2008


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to challenge his 2003 conviction for assault with a deadly weapon. Respondent filed a motion to dismiss, alleging that Petitioner's application was untimely. Docket No. 8. Petitioner opposed the motion. Docket No. 10. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. On May 15, 2007, the magistrate judge entered findings and recommendations, recommending the motion to dismiss be granted. Docket No. 13. In his objections to the findings and recommendations, Petitioner argued he should have received equitable tolling on account of his lack of education. Docket No. 14. The findings and recommendations were vacated and further briefing was taken on the issue of equitable tolling. Docket Nos. 17 (Order); 18 (Gov't supp. brief). Petitioner did not file a supplemental brief.

Now before the Court are the magistrate judge's findings and recommendations entered October 19, 2007. Docket No. 21. Again, the magistrate judge recommends the petition be dismissed as untimely. Id. Petitioner has filed objections essentially arguing that California law permits the correction of an unlawful sentence at any time. Docket No. 22. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of the portions of the findings and recommendations to which objection has been made. Having carefully reviewed the file, the Court agrees that Petitioner's application must be dismissed as untimely under 28 U.S.C. § 2244(d).

Petitioner does not contest the findings as to the untimeliness of his petition.*fn1 Rather, Petitioner argues that AEDPA's statute of limitation is irrelevant because an unlawful sentence can be corrected at any time under California law. Docket No. 22 at 2. Petitioner cites People v. Jack, 213 Cal. App. 3d 913 (Cal. Ct. App.1989). This case stands only for the proposition that a California court has the inherent power to correct a clerical error at any time. Jack, 213 Cal. App. 3d at 915. This has nothing to do with whether a federal court has jurisdiction over a habeas action brought by a state prisoner.

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") limits prisoners in custody pursuant to a state court judgment to one year for filing a federal petition for habeas corpus. 28 U.S.C. § 2244(d)(1). AEDPA's one-year statute of limitations applies to all federal habeas corpus petitions filed after the statute was enacted and therefore applies to the pending petition. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). As Stewart's petition was filed well after the one-year period had expired, the door to the federal courthouse is closed unless Petitioner can demonstrate grounds for equitable tolling. The Court agrees with the magistrate judge that Petitioner's lack of education does not constitute adequate grounds. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (lack of legal sophistication inadequate); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and lack of knowledge of law unfortunate but insufficient to establish cause).

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed October 19, 2007, are adopted in full;

2. Respondent's motion to dismiss at Docket No. 8 is GRANTED;

3. Petitioner's application for a writ of habeas corpus is DISMISSED;

4. The Court declines to issue a Certificate of Appealability;*fn2 and

5. The Clerk shall enter judgment accordingly.

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