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.

Ramirez v. Kramer

December 10, 2008

GUSTAVO SILVA RAMIREZ, PETITIONER,
v.
M.C. KRAMER, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondents' motion to dismiss this action as barred by the one year statute of limitations. See 28 U.S.C. § 2244(d).

Section 2244(d)(1) of Title 28 of the United States Code provides: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "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 shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2).

For purposes of the statute of limitations analysis, the relevant chronology of this case is as follows:

1. Petitioner pled no contest to assault with a firearm and admitted a sentencing enhancement. On March 23, 2004, petitioner was sentenced to a determinate state prison term of fourteen years in prison. (Lodged Document No. 1.)*fn1

2. Petitioner filed a timely appeal; on December 1, 2004, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lodged Document No. 2.)

3. Petitioner filed a petition for review in the California Supreme Court, Case No. S130535. (Lodged Document No. 3.) The petition for review was denied without prejudice*fn2 on February 16, 2005. (Lodged Document No. 4.) The Court of Appeal of the State of California issued the remittitur on February 28, 2005. (Lodged Document No. 8.)

4. On November 14, 2007,*fn3 petitioner filed a petition for writ of habeas corpus in the California Supreme Court, Case No. S158247. (Lodged Document No. 5.) On April 30, 2008, the California Supreme Court denied the petition en banc without comment. (Lodged Document No. 6.)

5. On May 13, 2008, petitioner filed the instant federal habeas corpus petition.*fn4 A conviction is final for the purposes of the AEDPA statute of limitations at the expiration of the ninety day period for seeking certiorari to the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). In the instant case, the California Supreme Court denied review on February 16, 2005. The ninety day period for seeking certiorari ended on May 17, 2005. Thus, the statute of limitations began to run on May 18, 2005, and ran out on May 17, 2006, absent any tolling of the statute. Fed. R. Civ. P. 6(a) (excluding the day on which the period begins to run from the calculation of time).

As a general rule, the limitation period is tolled "while a California petitioner 'complete[s] a full round of [state] collateral review.'" Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003)(quoting Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). Here, however, petitioner did not commence the state exhaustion process until he filed his first petition for writ of habeas corpus in the California Supreme Court on November 14, 2007, after the statute of limitations period had run on May 17, 2006. State habeas petitions filed after the one-year statute of limitations has expired do not revive the statute of limitations and have no tolling effect. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jimenez v. Rice, 276 F.3d 478, 482 (9th Cir.2001); Green v. White, 223 F.3d 1001, 1003 (9th Cir.2000). Because petitioner failed to file any ...


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.