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Brian Rayvan Johnson v. Cynthia Tampkins

November 5, 2012

BRIAN RAYVAN JOHNSON, PETITIONER,
v.
CYNTHIA TAMPKINS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Jean Rosenbluth U.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER DENYING FIRST AMENDED PETITION AND DISMISSING ACTION WITH PREJUDICE

BACKGROUND

On July 31, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. On August 3, 2012, the Court dismissed the Petition with leave to amend because it suffered from three deficiencies: (1) Petitioner did not date or sign the Petition; (2) the Petition appeared to include unexhausted claims; and (3) the Petition appeared to be time barred. On September 5, 2012, Petitioner filed a First Amended Petition. The FAP was signed and dated, so Petitioner had corrected the first deficiency. He also appeared to have clarified that he intended to raise only those claims he had raised on direct appeal. (See FAP at 5 (noting "See Attachment" for grounds raised and attaching opening brief on appeal).) Petitioner had not adequately demonstrated, however, that the FAP was not time barred. Accordingly, on September 12, 2012, the Court ordered Petitioner to show cause in writing no later than October 9 why the FAP should not be dismissed as untimely. On October 5, 2012, Petitioner filed a Response to the Order to Show Cause. On October 11, 2012, the Court ordered Respondent to file a reply to Petitioner's Response, which she did on October 30. The parties have consented to the jurisdiction of the undersigned judge.

DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 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.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Petitioner does not dispute that his conviction became final on March 15, 2011, 90 days after the state supreme court denied review, on December 15, 2010. See Merolillo v. Yates, 663 F.3d 444, 454 n.5 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3565 (U.S. Oct. 1, 2012) (No. 11-1094).*fn1 Nor does he contend that he is entitled to a later trigger date for any reason. Thus, Petitioner had until March 15, 2012, to file his federal Petition. Petitioner did not file the Petition until July 31, 2012, four and a half months late, and he did not constructively file the FAP until August 29, 2012, five and a half months late.

No basis for statutory tolling under § 2244(d)(2) exists, as Petitioner apparently did not file any state habeas petitions. (FAP at 3.) Petitioner has attached to the FAP and his Response to the OSC documents that he argues show his entitlement to equitable tolling. (Response at 3.) As the Court explained to Petitioner in its Order dismissing the Petition with leave to amend and in the OSC, under certain circumstances, a habeas petitioner may be entitled to equitable tolling, see Holland v. Florida, 560 U.S. __, 130 S. Ct. 2549, 2560, 177 L. Ed. 2d 130 (2010), but only if he shows that (1) he has been pursuing his rights diligently and (2) "some extraordinary circumstance stood in his way," see Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005).

Petitioner cannot show either. He attached to the FAP letters from his attorney on direct appeal, notifying him of the state courts' decisions. In the December 20, 2010 letter letting Petitioner know that the state supreme court had denied his petition for review, his attorney explained, in bolded lettering, that he must file any federal habeas petition "by one year and 90 days after the date of the decision, which was December 15, 2010." (FAP at 133.)*fn2 Thus, even though Petitioner complains that he is a layman without any ...

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