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Eason v. Tilton

January 5, 2009

RAYMELL EASON, PETITIONER,
v.
JAMES TILTON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Petitioner, an inmate in a federal facility, has filed a petition challenging a state sentence, pursuant to 28 U.S.C. § 2254.*fn1 In his amended petition, petitioner, who pled guilty, on 7/24/03, challenges the imposition of an 11-year sentence imposed in Placer County Superior Court for a count of possession of cocaine base for sale, under Cal. Health & Safety Code § 11351.5 (five years), with sentence enhancements for two prior felony convictions, under Cal. Health & Safety Code § 11370.2(a) (three years each, six total). Amended Petition, p. 12;*fn2 respondent's Lodged Document 1.

Motion to Dismiss

Pending before the court is respondent's motion to dismiss the petition on grounds of failure to exhaust one claim and failure to file the petition timely. The court will first determine whether or not the petition has been timely filed under AEDPA before considering any question of a lack of exhaustion. Petitioner filed a putative motion to strike in response to the motion which this court will construe as petitioner's opposition thereto.

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

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.

As noted, petitioner pled guilty to possession of cocaine base for sale and admitted two prior felony convictions on 7/24/03. Lodged Document (Lod. Doc.) 1. Since petitioner did not appeal, his conviction became final 60 days later, on 9/22/03. See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1). Unless one of the infrequently used trigger dates for the commencement of the limitations date is applicable, petitioner had one year to file a timely federal petition, or until 9/22/04.

28 U.S.C. § 2254(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 any period of limitation under this section. However, as respondent notes (Motion, p. 5), the filing of a state collateral action following expiration AEDPA limitations period cannot revive the limitations period or toll it under § 2254(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).

This court applies the mailbox rule*fn3 in dating the filing of the two pro se state post-conviction habeas challenges. The first state court petition was filed in Placer County Superior Court on 4/12/07, and denied on 4/25/07. Lod. Docs. 2 & 3. Petitioner made three efforts to appeal the state superior court's petition denial in the state's Third District Court of Appeal, which were dismissed as being from a non-appealable order, on 6/07/07, 7/05/07 and 8/23/07, respectively. Lod. Docs. 6, 7, and 8. Petitioner filed a petition for review of a habeas petition in the California Supreme Court on 9/30/07, which was denied on 11/14/07. Lod. Docs. 4 & 5. Although this matter proceeds upon an amended petition, the court dates the filing of this matter from the filing date of the original petition, pursuant to the mailbox rule, rendering ...


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