IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 17, 2012
SEAN DEMETRIOUS CLARK, PETITIONER,
WILLIAM KNIPP, RESPONDENT.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
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 petitioner's petition for a writ of habeas corpus (Doc. 1). Petitioner has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the action.
Rule 4 of the Federal Rules Governing Section 2254 Cases provides for
summary dismissal of a habeas petition "[i]f it plainly appears from
the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court." In the
instant case, it is plain that petitioner is not entitled to federal
habeas relief. In particular, habeas
relief is not available because the petition is 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). 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
Upon review of the instant petition, it is obvious that it is untimely. Petitioner states in his petition that he is challenging a 1998 conviction wherein he plead nolo contendere. Petitioner states he appealed the conviction, but abandoned the appeal on advice of counsel in August 1998. He then indicates he filed a writ of habeas corpus with the Butte County Superior Court, which was denied in September 2011, and a writ of coram vobis with the California Court of Appeal, which was denied in October 2011. The current petition was filed in this court on December 15, 2011.
The statue of limitations began to run following petitioner's conviction in 1998. The petitions filed in the State courts in 2011 did not toll the statute of limitations as those petitions were filed long after the statute of limitations expired. As there does not appear to be any basis for tolling the statute of limitations in this case, the statute of limitations expired at least by 2000. As the current petition was not filed until 2011, it is clear petitioner is at least 11 years too late.
Based on the foregoing, petitioner is required to show cause in writing, within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed as untimely. Petitioner is warned that failure to respond to this order may result in dismissal of the petition for the reasons outlined above, as well as for failure to prosecute and comply with court rules and orders. See Local Rule 110.
IT IS SO ORDERED.