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Rubio v. Hedgpeth

June 12, 2009

RAMON D. RUBIO, PETITIONER,
v.
ANTHONY HEDGPETH, ET AL., RESPONDENTS.



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

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for attempting to commit a lewd act with a child under the age of 14, two counts of annoying or molesting a child under the age of 18 after suffering a prior conviction for committing a lewd act upon a child, exhibiting harmful materials to a minor, and lewdly exposing himself after suffering a prior conviction for a lewd act with a child. Petitioner is serving a sentence of 175 years to life.

Pending before the court is respondent's April 16, 2009, motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully reviewing the record, the court recommends that the motion be granted.

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.

On June 13, 2007, the California Supreme Court denied petitioner's petition for review. Respondent's April 16, 2009, Lodged Document 2. Petitioner's conviction became final ninety days later on September 11, 2007, when the period for petitioning the United States Supreme Court for certiorari expired. Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). Petitioner had one year from that date, i.e. until September 10, 2008, to file a timely federal petition.

This action was filed in this court on October 27, 2008. However, pursuant to the "mailbox rule," "a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail." Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). See also Douglas v. Noelle, __F.3d__, 2009 WL 1564235 (9th Cir. June 5, 2009) (filing of the complaint in a Civil Rights Action subject to the mailbox rule). Petitioner's petition contains no proof of service indicating when he delivered it to prison authorities for filing by mail. However, on April 22, 2009, respondent filed a copy of petitioner's prison outgoing mail log indicating that on October 23, 2008, petitioner mailed a piece of mail to this court. See Respondent's April 22, 2009, Lodged Document 1. Any outgoing mail that is received by the prison mailroom is logged on the computer spread sheet and mailed on the same day. Id. Accordingly, pursuant to the mailbox rule, the court finds that petitioner filed his petition in this court on October 23, 2008, i.e. the day prison records reflect that he gave the petition to prison officials for mailing.

The court observes that petitioner signed his petition on October 8, 2008. It also appears that petitioner signed the petition on another date then scratched that date out and wrote "8." Petitioner does not address the reason for the 15 day delay between when he signed the petition on October 8, 2008, and when he gave it to prison officials to mail on October 23, 2008. Nor does petitioner address why he apparently signed his petition on two different dates. These unexplained matters do not affect the finding that petitioner filed his petition on October 23, 2008.

The instant action was filed more than one year after September 11, 2007. Accordingly, this action is not timely unless petitioner is entitled to statutory or equitable tolling.

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 ...


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