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Schafer v. Clark

September 25, 2009

DANIEL G. SCHAFER, PETITIONER,
v.
KEN CLARK, WARDEN, ET AL., RESPONDENTS.



ORDER

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consent. Dckt. Nos. 3, 11. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2). Respondent moves to dismiss on the ground that this action is untimely.

I. Introduction

Respondent seeks dismissal of the petition because it was filed beyond the one-year limitations period applicable to habeas actions. That one-year limitations period commences upon one of four events. The parties dispute which event commenced the limitations period here. Petitioner contends that with respect to his fourth claim,*fn1 the period began the date the United States Supreme Court announced a new rule and made it retroactively applicable to cases on collateral review. With respect to his third claim,*fn2 he asserts that it began the date he discovered facts that he could not previously have discovered though the use of due diligence.

Respondent does not differentiate the claims and argues generally that the one-year period began to run as to all claims on the date petitioner's conviction became final on direct review.

As explained below, the court finds that the one-year time period commenced as to all claims on the date petitioner's conviction became final. Moreover, petitioner does not claim that he is entitled to statutory tolling. He does, however, argue for equitable tolling. The court has considered both statutory and equitable tolling and finds that neither apply here. Accordingly, the petition is untimely and this action must be dismissed.

II. Procedural History

On February 25, 1998, when he was 16 years old, petitioner pleaded guilty to and was convicted of one count of kidnaping and multiple counts of robbery. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1; Pet'r Opp'n, at 1. He did not appeal.

In December of 1999, petitioner requested the trial court to provide transcripts of his plea and sentencing hearings free of cost. Pet'r Opp'n, Decl. Attach. Thereto ("Pet'r Decl."), at 1, 3. The trial court denied the request on September 7, 2000. Pet'r Decl., Ex. A. When the Supreme Court decided Blakely v. Washington, 542 U.S. at 303-04, 296, he realized the significance of these transcripts and began writing to friends and family in an attempt to procure a copies. Id., at 1. A copy of the plea agreement and minute order accepting the plea were sent to him in 2005, whereupon he filed a habeas petition in the trial court. Id. It is not clear when, but petitioner attempted to contact his father, who sent him a partial copy of his probation report in 2006. Id. at 2. He based all the claims in his federal habeas petitions on this report. Id.

The next judicial activity with respect to petitioner's conviction and sentence occurred on July 1, 2005, when petitioner filed a petition for a writ of habeas corpus in the trial court. Lodg. Doc. 2. The trial court denied that petition and he then filed a petition in the appellate court on September 29, 2006. Lodg. Docs. 3, 4. After the appellate court denied relief, petitioner filed petition in the California Supreme Court on October 27, 2006. Lodg. Docs. 5, 6. While that petition was pending, petitioner returned to the trial court with a second habeas petition filed March 21, 2007. Lodg. Doc. 8. Less than one month later, on April 17, 2007, the trial court again denied relief. Lodg. Doc. 9. On May 16, 2007, the California Supreme Court denied the petition pending before it. Lodg. Doc. 7.

Petitioner filed his application for a writ of habeas corpus in this court on May 22, 2008. He raises four claims. Claims three and four are relevant to the parties' dispute about when the limitations period commenced. In claim four, he contends that his sentence of 19 years in prison violates the Eighth Amendment's ban of cruel and unusual punishment because he was 16 years of age at the time he committed the crimes of conviction. Petition at 5. He relies on Roper v. Simmons, 543 U.S. at 574, in which the United States Supreme Court held that imposition of the death penalty on juveniles under the age of 18 at the time of the offense violates the cruel and unusual clause of the Eighth Amendment. In claim three, he argues that the trial court determined the statutory maximum based upon which an enhanced sentence could be imposed in violation of the Sixth and Fourteenth Amendments. See Blakely v. Washington, 542 U.S. at 303-04.

III. Standards Governing the Statute of Limitations

Section 2244(d)(1) of Title 28, United States Code provides that:

(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 ...


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