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Kenny Lynn Warren v. Domingo Uribe

September 1, 2011

KENNY LYNN WARREN, PETITIONER,
v.
DOMINGO URIBE, JR.
RESPONDENT.



ORDER and FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss the August 10, 2010 petition as untimely.*fn1

Petitioner opposes, asserting that he is entitled to statutory and equitable tolling of the statute of limitations.

On July 12, 2011, the court issued an order allowing petitioner to submit a declaration explaining in detail the facts forming the basis of his request for equitable tolling.*fn2 Petitioner submitted the following documents: a letter on July 27, a declaration on July 28, and a "Motion to Expand the Record"*fn3 on July 29. Defendants filed a reply brief on August 12.

For the reasons explained below, the court finds that petitioner is entitled to equitable tolling for the relevant time period, and recommends respondent's motion to dismiss be denied.

I. Procedural History

Petitioner was convicted of two counts of assault on a peace officer with a semiautomatic weapon while personally discharging a firearm, one court of false imprisonment by violence while personally using a firearm, one count of child endangerment, and one count of possession of a controlled substance. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc.") 2. He was sentenced to 44 years 8 months in prison. Id.

On July 16, 2008, the California Court of Appeal, Third Appellate District, affirmed the judgment. Id. Petitioner's request for review in the California Supreme Court was denied on October 22, 2008. Lodg. Doc. 4.

On December 27, 2009,*fn4 petitioner filed a habeas petition in the California Supreme Court, which was denied on July 14, 2010 with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998). Lodg. Doc. 6. The instant petition was filed on July 29, 2010. 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).

A. Statutory Tolling

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).

B. Equitable Tolling

The limitations period may also 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). The petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a ...


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