IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 6, 2010
JAY MATSON, PETITIONER,
KATHLEEN ALLISON, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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 is proceeding on the original petition filed April 29, 2010. Petitioner challenges his 2004 convictions for three counts of inflicting corporal injury on a spouse or cohabitant and one count of dissuading a victim by use of force or violence. Petitioner is serving a sentence of nine years.
Petitioner raises two claims. First, he alleges that his upper term sentences violate Butler v. Curry, 528 F.3d 624 (9th Cir. 2008). Second, he alleges that his consecutive sentences violate Blakely v. Washington, 542 U.S. 296 (2004).
Pending before the court is respondent's July 7, 2010 motion to dismiss on grounds that this action is barred by the statute of limitations. After carefully considering the record, the undersigned recommends that respondent's 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 November 16, 2005, the California Supreme Court denied petitioner's petition for review. (Respondent's Lodged Document 4.) Petitioner's conviction became final ninety days later on February 14, 2006. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (a conviction is final for purposes of the statute of limitations at the expiration of the ninety day period for seeking certiorari). Therefore, the statute of limitations time period began on February 15, 2006. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6 to calculation of time periods).
This action was not filed within one year of February 15, 2006. Accordingly, this action is not timely unless petitioner is entitled to equitable or statutory tolling.
The period of limitation is tolled while a "properly filed" application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Petitioner filed his first state habeas petition on April 17, 2009. (Respondent's Lodged Document 5.) Petitioner is not entitled to statutory tolling because he did not file his state habeas petition within the limitation period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
In his opposition, petitioner makes no argument for equitable tolling. Instead, petitioner argues that because his claims are based on new law, the statute of limitations should run from a later trigger date pursuant to 28 U.S.C. § 2244(d)(1)(C). In particular, petitioner argues that the statute of limitations should run from June 9, 2008, i.e. the date the Ninth Circuit decided Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), on which his first claim is based.
As noted by respondent in the reply, 28 U.S.C. § 2244(d)(1)(C) allows for commencement of the statute of limitations based on the date on which a constitutional right is newly recognized by the Supreme Court and made retroactively applicable. Butler is a Ninth Circuit case, not a Supreme Court case. For that reason, petitioner's argument that the statute of limitations may run from the date the Ninth Circuit decided Butler is without merit.
In essence, by citing Butler, petitioner is raising a claim pursuant to Cunningham v. California, 549 U.S. 270 (2007). On January 22, 2007, in Cunningham, the Supreme Court held that California's Determinate Sentence Law, which permitted a judge rather than a jury to make findings to support the imposition of the upper term, violates a defendant's Sixth Amendment right to trial by jury. Cunningham, 549 U.S. at 293. Construing petitioner's claim one as a Cunningham claim, this action is still not timely because the Supreme Court has not found its holding to be retroactive, which is a necessary predicate to the application of 28 U.S.C. § 2244(d)(1)(C). See Dodd v. United States, 545 U.S. 353, 358 (2005) (construing identical language in section 2255 as expressing clear congressional intent that delayed accrual is inapplicable unless the Supreme Court itself has made the new rule retroactive); see also Butler v. Curry, 528 F.3d at 639 (Cunningham did not create a new rule of law).
For the reasons discussed above, the undersigned finds that this action is barred by the statute of limitations and recommends that respondent's motion to dismiss be granted.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (Dkt. No. 13) be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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