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Carlos Foster v. Tim Virga

February 21, 2013

CARLOS FOSTER, PETITIONER,
v.
TIM VIRGA, RESPONDENT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. He challenges 2006 convictions for murder and robbery. Respondent has filed a motion asking that this matter be dismissed as time-barred.

The limitations period applicable to this action may be found at 28 U.S.C. § 2244(d)(1). That statute provides as follows:

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.

The limitations period began to run under § 2244(d)(1)(A) on May 12, 2010; the day after time expired for petitioner to file a petition for writ of certiorari in the United States Supreme Court concerning the direct review of his convictions and sentences. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("We hold that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition."). The period ran at least until November 16, 2010, when petitioner submitted a petition for collateral relief in the Superior Court of Sacramento County to prison officials for mailing.*fn1 Title 28 U.S.C. §2244(d)(2) provides that "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." 28 U.S.C. § 2244(d)(2). The Superior Court petition was denied on December 8, 2010. Respondent concedes petitioner is entitled to tolling while the Superior Court petition was pending. By December 8, 2010, 188 days of the one year limitations period had expired.

Petitioner filed his second state petition for collateral relief, this time in the California Court of Appeal, on February 14, 2011.*fn2 The petition was denied on February 17, 2011. Respondent concedes that petitioner is entitled to tolling of the limitations period while his second petition was pending. However, respondent asserts petitioner is not entitled to tolling for the 67 day period between the denial of petitioner's first petition and the filing of the second.

The California Court of Appeal did not indicate whether the petition for collateral review filed by petitioner was timely. That being the case, the court asks whether a California court would find the delay in filing the petition unreasonable. If the delay was reasonable, petitioner is entitled to tolling of the limitations period under 28 U.S.C. §2244(d)(2) for the interval of time between denial of his first petition and the filing of his second. Evans v. Chavis, 546 U.S. 189, 198 (2006).

In Evans, the Supreme Court found that an unexplained six-month delay in proceeding to the next level of review in California is unreasonable. Evans, 546 U.S. at 201. The Court also noted that, in most states, litigants are allowed 30-60 days to appeal to a higher court suggesting that a California court would find 60 days a reasonable amount of time to wait to present a petition for collateral review to a higher court. Id.

The court finds that a California Court would not find petitioner's delay in proceeding to the Court of Appeal unreasonable. Again, there is no firm deadline as to when petitioner had to file, so holding him to 60 day deadline would be somewhat arbitrary. Petitioner only missed the outer end of what the Supreme Court essentially identified as per se reasonable by 7 days. The court finds it at least noteworthy that the Court of Appeal did not find petitioner's petition for collateral relief untimely, since, in the court's experience, California courts rule petitions untimely relatively frequently. For these reasons, the court finds that the limitation period applicable to this action was tolled from the day petitioner filed his petition for collateral review in the Superior Court of Sacramento County through the date his second petition was denied in the California Court of Appeal.

Petitioner filed his third petition for collateral review in the California Supreme Court on March 15, 2011.*fn3 The petition was denied on August 17, 2011. Respondent concedes that the limitations period was tolled from the date of the denial of his Court of Appeal petition to the date his Supreme Court petition was denied. Therefore, the limitations period was tolled for petitioner's complete round of collateral review commenced in the Superior Court of Sacramento County on November 16, 2010 and ending on August ...


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