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Christian Rangel v. P.D. Brazelton*Fn1

October 16, 2012

CHRISTIAN RANGEL, PETITIONER,
v.
P.D. BRAZELTON*FN1 , RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 16, 2012, petitioner filed a motion for equitable tolling. On August 27, 2012, respondent filed a motion to dismiss. Upon review of the motions, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On December 20, 2006, petitioner was convicted by a jury of seven counts of robbery. Lodgment ("LD") 1-2. Petitioner was also found to have been personally armed with or personally used a firearm. Id. Petitioner was sentenced to a determinate state prison term of twenty-eight years. Id.

On direct appeal, the California Court of Appeal, Third Appellate District, reversed the conviction for and struck the sentence imposed on one of the robbery counts. LD 2. In all other respects, the judgment was affirmed. Id. Petitioner appealed to the California Supreme Court, which denied review on October 16, 2008. LD 3-4.

On collateral review, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court on May 12, 2011. LD 5. On June 9, 2011, that petition was denied as untimely. LD 6.

Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, which summarily denied the petition on July 14, 2011. Doc. No. 17 at 20.

Finally, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. LD 9. On December 14, 2011, the state's highest court denied the petition with citation to In re Robbins, 18 Cal. 4th 770, 780 (Cal. 1998). LD 10.

Petitioner initiated this action on March 16, 2012. This action is proceeding an a first amended petition filed May 8, 2012. Respondent filed a motion to dismiss on August 27, 2012. Petitioner opposes the motion.

DISCUSSION

A. Respondent's Motion to Dismiss was Timely Filed

In his opposition, petitioner first argues that respondent's motion to dismiss should be struck as untimely because it was filed beyond the 60-days to file a response to the petition, as set forth in this court's June 26, 2012 order. Respondent counters that, because the 60-day period expired on Saturday, August 25, 2012, his motion to dismiss, filed Monday, August 27, 2012, was timely. Respondent is correct, and the court will deem the motion to dismiss timely filed.

B. The Amended Petition is Time-Barred Under AEDPA's One-Year Statute of Limitations Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, all federal habeas petitions are subject to AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d). The one-year limitations period applies to all federal petitions filed after the April 24, 1996 effective date of AEDPA. As this petition was filed on March 16, 2012, AEDPA's statute of limitations applies. Untimely petitions are barred from federal review. See 28 U.S.C. § 2244(d).

Generally, a state prisoner challenging his custody has one year to file his federal petition from the date on which his conviction became final by the conclusion of direct review, or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d) (1)(A). Calculating the timeliness of the federal petition requires more than simply looking at the date of the final state court judgment and the date the federal petition was filed. That is because the proper filing of a state habeas petition application concerning the pertinent conviction tolls the one-year limitations period. See 28 U.S.C. § 2244(d)(2).

Here, the record reflects that the California Supreme Court denied review of petitioner's direct appeal on October 16, 2008, and there is no assertion that petitioner raised his claims before the United States Supreme Court. Petitioner's conviction therefore became final ninety days after October 16, 2008 -- that is, on January 14, 2009. See U.S. Supreme Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations began to run the following day, on January 15, 2009, and expired one year later, on January 15, 2010. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner initiated collateral review of his conviction and sentence on May 12, 2011 in the Sacramento County Superior Court, and initiated this action on March 16, 2012. There is no question as to the untimeliness of the petitions filed on collateral review in the state courts and the petition filed in this court, all having been filed well after the statute of limitations expired. Having had already run, the AEDPA statute of limitations is not revived by a later-filed state habeas petition. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not ...


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