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Augustus Nelson v. Ken Clark

August 23, 2011

AUGUSTUS NELSON,
PETITIONER,
v.
KEN CLARK, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; and (3) DENYING CERTIFICATE OF APPEALABILITY

This matter is before the Court on Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus. [Doc. No. 12.] Respondent contends that the petition is barred by the one-year statute of limitations. Magistrate Judge Mitchell Dembin issued a Report and Recommendation ("R & R") recommending the Court grant Respondent's motion. Petitioner filed objections. [Doc. No. 30.]

Upon de novo review, the Court concludes Petitioner did not file his petition within the statute of limitations, and he is not entitled to statutory or equitable tolling. Accordingly, the Court adopts the R & R in full and grants Respondent's motion to dismiss.

BACKGROUND

The R & R contains a complete and accurate summary of the proceedings in this case, and the Court fully adopts the Magistrate Judge's detailed background. [See R & R at 1-3.] In sum, Petitioner is serving a life sentence with the possibility of parole after his conviction of kidnapping for robbery with the use of a deadly weapon. [R & R at 2.] On April 13, 2007, following a hearing, Petitioner was found guilty of a prison rule violation for possession of an inmate-manufactured weapon. [Id.] Petitioner's final administrative attempt to appeal from the violation was rejected as untimely on September 19, 2007. [Id.]

Between November 2007 and March 2010, Petitioner filed multiple petitions for habeas corpus relief in state court, culminating with the Supreme Court of California's March 10, 2010 denial of his request for reconsideration. [Id.] On May 10, 2010, Petitioner filed a petition for writ of habeas corpus in this Court, which Respondent now moves to dismiss as untimely.

DISCUSSION

I. Statute of Limitations

The R & R sets forth the correct legal standards the Court must apply in considering whether the current petition is time barred. Habeas petitions are governed by a one-year period of limitation, and Petitioner's one-year statute of limitations began to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).

The R & R correctly concluded that the statute of limitations began running on September 20, 2007. Petitioner's Objection-that the limitations period began running on March 25, 2009- is unavailing. Petitioner's final administrative appeal was rejected on September 19, 2007, and the statute of limitations began the next day.*fn1 See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004).

A. Statutory Tolling

The one-year limitations period for habeas petitions is tolled when a properly filed petition for habeas relief is pending in state court. 28 U.S.C. § 2244(d)(2). The limitations period is also tolled as "pending" between a state court's disposition of a habeas petition and the filing of an appeal or petition at the next state appellate level, so long as the petitions are filed within a "reasonable time" of each other. Carey v. Saffold, 536 U.S. 214, 223 (2002).

What constitutes a "reasonable time" is determined by state law. Id. Analyzing what constitutes a "reasonable time" under California law, the Ninth Circuit has recently held that delays of 115 and 101 days between state habeas petitions were ...


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