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Otton v. Finn

August 24, 2010

ANDREW OTTON, JR., PETITIONER,
v.
CLAUDE E. FINN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the first amended petition filed on March 28, 2007. (Dkt. No. 17.) In 1984, petitioner was convicted of first degree murder pursuant to a guilty plea. Petitioner was sentenced on February 9, 1984, to twenty-five years to life in state prison.

Petitioner raises four claims in his amended petition, all of which he contends violate the terms of his 1984 plea agreement.*fn1 Generally, petitioner contends that his plea agreement provided that he would earn good time credits such that he would parole 12-1/2 years after his initial incarceration. He argues that his plea has been rendered involuntary by the failure of the Board of Prison Terms and San Mateo County officials to abide by the terms of the plea bargain. Petitioner also argues that San Mateo County officials are violating the plea agreement by appearing at his parole hearings and opposing petitioner's release on parole. Finally, petitioner contends his plea bargain has been violated by former Governor Gray Davis' "no parole" policy.

Respondent argues petitioner's claims are untimely. II. The Statute Of Limitations And The Plea Bargain The Antiterrorism and Effective Death Penalty Act ("AEDPA") contains a statute of limitations for filing a habeas petition:

(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.

(2) 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 subsection.

28 U.S.C. § 2244.

Petitioner was sentenced on February 9, 1984. A twelve-and-a-half year term would have expired no later than August 9, 1996, which arguably would have been the date upon which the factual predicate of the claim could have been discovered. However, petitioner's initial parole consideration hearing was held on December 30, 1997. (Dkt. No. 23-6 at 36.) It appears unlikely petitioner would have believed he would be paroled prior to his initial parole hearing. Thus, even with December 30, 1997 as a starting date, the statute of limitations expired on December 31, 1998, and would not have been revived by petitioner's 2003 habeas petition filed in the San Mateo Superior Court. 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). The discovery of "the factual predicate" of a claim may give rise to a new limitations period. Hasan v Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001). However, it is not necessary for a petitioner to understand the legal significance of the facts; rather, the clock starts when a petitioner understands the facts themselves. Id. at 1154 n.3.

Petitioner has failed to address the issue of timeliness and did not file a reply to respondent's answer. Petitioner does not say he was unaware of the factual basis of his claim in 1996, 1997 or 1998. Indeed, he argues his understanding of the plea agreement was that he would only serve one-half of the 25 year term and then be released on parole. Petitioner makes no effort to explain why it took him until 2003 to file a habeas petition in state court. Petitioner has not borne his burden of demonstrating the petition is timely as to his claims concerning the plea bargain. See Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001) (indicating that once a petitioner is given adequate notice and opportunity ...


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