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Rodney Wayne Jones v. Tim Virga

October 15, 2012

RODNEY WAYNE JONES, PETITIONER,
v.
TIM VIRGA , ET. AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the guilty finding from a prison disciplinary charge of battery causing serious injury. Presently pending before the court is respondent's motion to dismiss this case as it was filed beyond the one-year statute of limitations. Doc. 11. Petitioner filed an opposition, but respondent did not file a reply. For the reasons that follow it is recommended that the motion to dismiss be denied.

II. Analysis

The statute of limitations for federal habeas corpus petitions is set forth in 28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Petitioner was found guilty in February 2009, of battery causing serious injury, that resulted in the loss of 360 days of credits. Opposition to Motion to Dismiss (Opposition) at

2. On September 14, 2009, the inmate appeals branch informed petitioner that his administrative appeal was denied. Petition at 24-25 of 29. Therefore, the disciplinary finding became final on that day. Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004). The statute of limitations began to run the next day on September 15, 2009. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had one year, that is, until September 14, 2010, to file a timely federal petition, absent applicable tolling. The instant action, filed April 17, 2012,*fn1 is not timely unless petitioner is entitled to statutory or equitable tolling.

Petitioner filed the following state post-conviction collateral actions:

1. Petitioner filed his first petition in the Superior Court of Kings County on February 5, 2010. Opposition at 13. That filing was not accepted by the Superior Court. Opposition at 16. Petitioner re-filed with the Superior Court on March 30, 2010. Opposition at 18-19. That petition ...


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