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Kenji Arde v. Kathleen Allison

February 10, 2011

KENJI ARDE, PETITIONER,
v.
KATHLEEN ALLISON, WARDEN,*FN1
RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Respondent moves to dismiss on the ground that the petition is barred by the statute of limitations. As explained below, this action is untimely and respondent's motion to dismiss must therefore be granted.

I. Procedural History

On April 22, 2003, petitioner pled guilty to forgery, possession of a controlled substance while armed with a firearm, possession for sale of a controlled substance, two counts of being a felon in possession of a firearm, three counts of possession of a controlled substance, and two counts of possession of forged checks. Pet. at 2; Resp.'s Mot. to Dism. ("Mot."), Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 1. A number of sentencing enhancements were also found true. Pet. at 2; Lodg. Doc. 1. On June 10, 2003, the Sacramento County Superior Court sentenced petitioner to a determinate state prison term of nineteen years. Lodg. Doc. 1. Petitioner appealed his sentence but subsequently requested dismissal of the appeal. Lodg. Doc.2. On April 22, 2004, the California Court of Appeal, Third Appellate District, dismissed the appeal pursuant to petitioner's written request. Lodg. Doc. 3. Petitioner did not seek review of the dismissal. Mot. at 2.

Petitioner subsequently filed four pro se state post-conviction collateral challenges.

On March 15, 2009, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court.*fn2 Lodg. Doc. 4. The superior court denied the petition on May 1, 2009. Lodg. Doc. 5.

On June 29, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. Lodg. Doc. 6. The appellate court denied the petition on July 9, 2009. Lodg. Doc. 7.

On July 31, 2009, petitioner filed a petition for review in the California Supreme Court, seeking review of the superior court's May 1, 2009 denial of his petition. Lodg. Doc. 8. The state supreme court denied the petition for review on September 17, 2009. Lodg. Doc. 9.

Petitioner also filed a petition for writ of habeas corpus in the California Supreme Court on August 7, 2009. Lodg. Doc. 10. However, on August 12, 2009, the court "voided" the case because the petition was "a duplicate filing of S175332." Lodg. Doc. 10; see also Lodg. Doc. 8 (case number S175332).

Petitioner filed this action on October 15, 2009. Dckt. No. 1.

II. Statute of Limitations

A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

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). However, 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). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

The limitations period may be equitably tolled where a habeas petitioner establishes two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In light of this pronouncement, the Ninth Circuit has reiterated that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).

Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. ...


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