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Cassells v. Knowles

February 3, 2010

KEITH MICHAEL CASSELLS, PETITIONER,
v.
MIKE KNOWLES,*FN1 RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action on the grounds that it is untimely and contains two unexhausted claims. Petitioner opposes the motion and requests that the action be stayed. For the reasons explained below, the court finds that the petition is untimely. The court therefore recommends that petitioner's motion to stay be denied and that respondent's motion to dismiss be granted.

This action is proceeding on the original petition filed October 28, 2008.*fn2 Dckt. No. 1. Petitioner challenges his 1998 conviction, entered pursuant to a plea of nolo contendere, to charges of multiple counts of robbery. Id. at 2; Resp.'s Mot. to Dism. ("Mot."), Docs. Lodged in Supp. Thereof ("Lodged Docs.") 1. He claims he received ineffective assistance of counsel, that his sentence violates California's determinate sentencing law and the holding of Cunningham v. California, 549 U.S. 270 (2007), and that it was illegal to enhance his sentence through use of a 1981 prior conviction that was obtained by plea bargain. Pet. at 5-6. Respondent contends the petition is barred by the statute of limitations.

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.

According to respondent, the statute of limitations began running under section 2244(d)(1)(A), the date upon which the judgment became final. Mot. at 3. The court agrees. Since petitioner did not appeal his March 2, 1998 conviction, the conviction became "final" on May 1, 1998, after the sixty-day period for filing a direct appeal with the California Court of Appeal expired. See Cal. R. Ct. 8.308 (formerly Rule 30.1).

Petitioner appears to request a later start date for the statute of limitations based upon section 2244(d)(1)(D), "the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence." According to petitioner, it was not until 2007 that he discovered "that both the court and his attorney had allowed for the violation of his constitutional rights through an unauthorized and illegal sentence and a breach of contract and plea agreement; by misinterpretation and application of statutes, codes and laws." Pet'r's Opp'n to Mot. ("Opp'n") at 2-3. Petitioner further asserts that "late in 2008," he discovered he had legitimate claims. Id. at 4. Petitioner's conclusory arguments do not justify an alternate start date to the statute of limitations.*fn3 Petitioner was, or should have been aware of the factual predicate of his claims as of the date he was sentenced pursuant to his plea. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins to run when a prisoner "knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance").

Here, the one-year statute of limitations ran from the date petitioner's conviction became final rather than from the date he discovered the legal consequences of his plea. See 28 U.S.C. § 2244(d)(1)(A). Petitioner therefore had until May 3, 1999 to file his federal petition.*fn4

Petitioner did not file the instant petition until October 28, 2008. Dckt. No. 1. Absent tolling, his application in this court is over nine years late.

There is no statutory tolling of the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed . . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But once a petitioner properly files a state post- conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). If the limitations period has run, however, it cannot be revived by a collateral action. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

Petitioner filed five petitions for post-conviction relief in the state courts. Pet. at 2; Lodg. Docs. 2, 4, 6, 8, 10. The earliest of these petitions was filed on February 21, 2007. Lodg. Doc. 2. Because petitioner waited almost seven years after the federal statute of limitations period expired before filing his first state ...


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