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Shawn Conley v. L.S. Mcewen

June 23, 2012

SHAWN CONLEY, PETITIONER,
v.
L.S. MCEWEN,
RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2003 judgment of conviction entered against him in the Sacramento County Superior Court on three counts of robbery in the second degree, six counts of assault with a firearm, six counts of false imprisonment, one count of vehicle theft and various sentencing enhancements. Before the court is respondent's motion to dismiss the pending federal habeas petition on the ground that it was filed beyond the applicable one-year statute of limitations. Petitioner has filed an opposition to the motion and respondent has filed a reply.

BACKGROUND

On February 18, 2003, following a jury trial, petitioner was convicted of the offenses noted above and was sentenced to a determinate prison term of thirty-one years and four months. (Lod. Doc. No. 1.) On March 29, 2005, the California Court of Appeal for the Third Appellate District affirmed that judgment of conviction. (Lod. Doc. 2.)

On April 28, 2005, petitioner filed a petition for review with the California Supreme Court. (Lod. Doc. 3.) On June 8, 2005, the petition for review was denied by the California Supreme Court "without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) U.S. , 124 S.Ct. 2531, on California law." (Lod. Doc. 4.)

On or about October 23, 2007, petitioner's appellate counsel filed a motion to recall the remittitur with the California Court of Appeal for the Third Appellate District. (Doc. No. 17 at 12.) On October 30, 2007, that motion was denied. (Id. at 23.) Thereafter, petitioner filed three habeas petitions in state court. First, On March 31, 2008, petitioner signed a habeas petition that he filed with the Sacramento County Superior Court.*fn1 (Lod. Doc. 5.) On May 28, 2008, that petition was denied on the merits. (Lod. Doc. 6.) Second, on June 25, 2008, petitioner signed a habeas petition that he filed with the California Court of Appeal for the Third Appellate District. (Lod. Doc. 7.) On July 3, 2008, that petition was summarily denied. (Lod. Doc. 8.) Third, on April 22, 2009, petitioner signed a habeas petition that he filed with the California Supreme Court. (Doc. No. 9.) On October 14, 2009, that petition was denied with a citation to the decision in People v. Duvall, 9 Cal. 4th 464, 474 (1995). (Doc. No. 10.)

The federal habeas petition now pending before this court was signed by petitioner on January 5, 2011. (Doc. No. 1 at 14.)

PARTIES' ARGUMENTS

I. Respondent's Motion to Dismiss

Respondent contends that petitioner's judgment of conviction became final on September 6, 2005 when the ninety-days to file a petition for writ of certiorari with the U.S. Supreme Court expired. (Doc. No. 14 at 3.) Respondent argues that the one-year statute of limitations for the filing of a federal habeas petition therefore began to run on September 7, 2005 and the last day for petitioner to file an application for federal habeas relief was September 6, 2006, plus any time for tolling. (Id.)

Because petitioner did not file his state habeas petitions during the one-year limitation period for the filing of his federal petition (September 7, 2005 to September 6, 2006), respondent argues that there is no tolling of the limitations period under 28 U.S.C. § 2244(d)(2). (Id.) In addition, respondent argues that the federal habeas petition before the court was filed over four years after the statute of limitations for doing so had expired. (Id.) Because the state habeas petitions were filed after the statute of limitations for the filing of a federal petition had expired, they do not operate so as to toll that statute of limitations and cannot save petitioner's present claims from being time-barred. (Id. at 4.)

II. Petitioner's Opposition

Petitioner argues that he is entitled to both statutory and equitable tolling and "to a later triggering date" with respect to the applicable statute of limitations for the following reasons. (Doc. No. 17 at 1.)

Petitioner contends that he never received the June 8, 2005 decision by the California Supreme Court denying his petition for review. (Doc. No. 17 at 2.) According to petitioner, from May 2004 to October 2008, he was incarcerated at the Sacramento County Main Jail and has attempted, unsuccessfully, to obtain the relevant mail logs from the Jail. (Id. at 2.)

Petitioner states that from July 15, 2004 through December of 2004, he "made several attempts, in writing and by phone" to contact his appellate counsel regarding the status of his direct appeal. (Id.) Petitioner represents that on August 5, 2007, he contacted the Central California Appellate Program (CCAP) to obtain their assistance in inquiring about the status of his direct appeal. (Id.) According to petitioner, his letter to CCAP was forwarded to his appointed appellate counsel. (Id. at 10.) Petitioner claims that on August 29, 2007, he received a letter from his appointed appellate counsel. (Id. at 2 & 25.) In that letter his appellate counsel apologized for the "gap in communication" and advised petitioner that she was assessing what action to take in light of the California Supreme Court decisions concerning Blakely v. Washington, 542 U.S. 296 (2004). (Id. at 2-3 & 25.) However, petitioner states that he had no other communication from his appellate counsel until she assisted with the filing of his state habeas petition with Sacramento County Superior Court on March 31, 2008. (Id. at 3.)

Petitioner contends that he has been diligent in filing his federal habeas petition "in the face of these impediments" and being "challenged by the hardships of being incarcerated, where he was required to seek the assistance of other inmates ...


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