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Jeffrick Brown v. Gary Swarthout

June 22, 2011

JEFFRICK BROWN,
PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition as, among other things, untimely (Doc. 14); petitioner's opposition and motion for a stay-and-abeyance order (Doc. 16), and respondent's reply and opposition to petitioner's stay-and-abeyance motion (Doc. 18).

I. BACKGROUND

Petitioner was convicted of attempted premeditated murder, two counts of forcible rape, and one count of genital penetration with a foreign object. He was sentenced on June 2, 2006, to a determinate prison term of 38 years, a consecutive indeterminate term of 50 years to life, and a consecutive term of life with the possibility of parole. The sentence was recalled by the trial court on September 28, 2006, and petitioner was re-sentenced on May 14, 2007. The California Court of Appeal affirmed the conviction and new sentence on March 24, 2009. The California Supreme Court denied direct review on June 10, 2009, and petitioner did not seek review by the United States Supreme Court.

Petitioner then filed three state court post-conviction actions as follows: First Petition Sacramento County Superior Court Filed September 2, 2010

Denied as untimely on 10-7-2010 Second Petition California Court of Appeal Filed October 30, 2010

Denied without comment on November 10, 2010 Third Petition California Supreme Court Filed January 25, 2011

Currently pending. The instant federal petition was filed on October 23, 2010.

II. DISCUSSION

Respondent argues primarily that the petition should be dismissed as untimely.*fn1

Federal habeas corpus petitions must be filed within one year from the later of: (1) the date the state court judgment became final; (2) the date on which an impediment to filing created by state action is removed; (3) the date on which a constitutional right is newly-recognized and made retroactive on collateral review; or (4) the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court judgment becomes final by the conclusion of direct review or expiration of the time to seek direct review. See 28 U.S.C. § 2244(d)(1). Where a petition for review by the California Supreme Court is filed and no petition for certiorari is filed in the United States Supreme Court, the one-year limitations period begins running the day after expiration of the 90-day time within which to seek review by the United States Supreme Court. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

The limitations period is tolled, however, for the time a properly filed application for post-conviction relief is pending in the state court. See 28 U.S.C. § 2244(d)(2). To be "properly filed," the application must be authorized by, and in compliance with, state law. See Artuz v. Bennett, 531 U.S. 4 (2000); see also Allen v. Siebert, 128 S.Ct. 2 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that, regardless of whether there are exceptions to a state's timeliness bar, time limits for filing a state post-conviction petition are filing conditions and the failure to comply with those time limits precludes a finding that the state petition is properly filed). A state court application for post-conviction relief is "pending"during all the time the petitioner is attempting, through proper use of state court procedures, to present his claims. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). It is not, however, considered "pending" after the state post-conviction process is concluded. See Lawrence v. Florida, 549 U.S. 327 (2007) (holding that federal habeas petition not tolled for time during which certiorari petition to the Supreme Court was pending). Where the petitioner unreasonably delays between state court applications, however, there is no tolling for that period of time. See Carey v. Saffold, 536 U.S. 214 (2002). If the state court does not explicitly deny a post-conviction application as untimely, the federal court must independently determine whether there was undue delay. See id. at 226-27.

As respondent correctly notes, the one-year limitations period in this case began to run on September 21, 2009 -- the day after expiration of the 90-day period within which to seek certiorari by the United States Supreme Court -- and expired one-year later on September 20, 2010, absent statutory tolling.*fn2 With respect to petitioner's three state court post-convictions actions, respondent argues that they do not toll the limitations period because they were not "properly filed." Specifically, respondent observes that the first petition was denied by the Sacramento County Superior Court as untimely with citations to In re Robbins, 18 Cal.4th 770 (1998), and In re Clark, 5 Cal.4th 750 (1993). The court agrees with respondent that the limitations period is not tolled incident to the first state court post-conviction action because it was untimely and, therefore, not "properly filed."

As to the second and third post-conviction actions, respondent also argues that they were not "properly filed." Applying the presumption outlined in Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), that this court must "look though" later unexplained decisions to the last reasoned state court decision, respondent contends the court should "look through" the silent denials of the second and third petitions to conclude that, as with the first petition, they too were untimely and, therefore, not "properly filed." Again, the court agrees with respondent's analysis. See Bonner v. Carey, 425 F.3d 1145, 1148 n.3 (9th Cir. 2005). "Looking through" the silent denials of the second and third petitions, this court concludes that the reasoning behind the denial of the first petition applies to the ...


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