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Larry Solorio v. Kevin Chappell

February 26, 2013

LARRY SOLORIO, PETITIONER,
v.
KEVIN CHAPPELL,*FN1 RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action as untimely. Dckt. No. 10. For the following reasons, respondent's motion must be granted.

I. Procedural History

Petitioner was convicted of grand theft on January 21, 1997. Documents Lodged ISO Resp.'s Mot. to Dismiss (hereinafter "Lodg. Doc.") 1. Pursuant to California's Three Strikes law, the Sacramento County Superior Court sentenced petitioner to 25 years to life. Lodg. Docs. 1, 2. Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed the lower court's judgment. Lodg. Doc. 2. Petitioner filed a petition for review in the California Supreme Court, which denied the petition on April 11, 2001. Lodg. Docs. 3, 4.

Petitioner subsequently filed three state habeas petitions. First, he filed a habeas petition in the Sacramento County Superior Court on February 15, 2010.*fn2 Lodg. Doc. 5. That petition was denied on March 22, 2010. Lodg. Doc. 6. The second state petition was filed in the California Court of Appeal, Third Appellate District, on April 12, 2010, and was denied on April 15, 2010. Lodg. Docs. 7, 8. Petitioner's last state petition, filed in the California Supreme Court, was denied on July 13, 2011. Lodg. Docs. 9, 10.

The instant petition was filed in this court on August 8, 2011. Dckt. No. 2011. Petitioner claims that his sentence violates the United States Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v. California, 549 U.S. 270 (2007), because he received an indeterminate life sentence based on factual findings made by the sentencing judge and not by a jury.*fn3 Dckt. No. 1 at 5.*fn4

II. Statute of Limitations

A one-year limitations period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).

There is no statutory tolling of the limitations period "from the time a final decision is issued on direct state appeal [to] the time the first state collateral challenge is filed . . . ." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, once a petitioner properly files a state post-conviction application the period is tolled, and remains tolled for the entire time that application is "pending." 28 U.S.C. § 2244(d)(2). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In California, a properly filed post-conviction application is "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). A federal habeas application does not provide a basis for statutory tolling. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

Equitable tolling is available where a petitioner shows "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Nedds v. Calderoni, 678 F.3d 777 (9th Cir. 2012). The U.S. Court of Appeals for the Ninth Circuit has held that the threshold necessary to trigger equitable tolling is very high, and clarified that equitable tolling only applies where a petitioner shows that despite diligently pursuing his rights, some external force caused the untimeliness. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009).

Petitioner has the burden of showing facts entitling him to statutory and equitable tolling. Smith, 297 F.3d at 814 (overruled on other grounds by Pace, 544 U.S. at 418); Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

III. Analysis

A. Start Date of the Limitations Period

In this case, the statute of limitations began to run when petitioner's conviction became final on direct review. See 28 U.S.C. § 2244(d)(1)(A). The California Supreme Court denied review on April 11, 2001. Lodg. Doc. 4. The conviction became final within the meaning of section 2244(d)(1)(A) when the time for filing a petition for writ of certiorari expired ninety days later, on July 10, 2001. Supreme Ct. R. 13; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). The one year limitations period commenced running the following day. Patterson v. Stewart, 251 F.2d 1243, 1246 (9th Cir. 2001). Thus, the petitioner had until July 10, 2002, to file his federal habeas petition. However, he did not file the instant petition until August 8, 2011. Dckt. No. 1. Absent tolling, the petitioner is more than nine years late.

In his opposition to the present motion, petitioner argues that this court may entertain his petition because his claims "are based solely on a New Rule of Law and Newly discovered and Newly presented evidence." Dckt. No. 13 at 3 (internal quotations omitted). Although not entirely clear from his opposition, petitioner appears to argue that he is entitled to a later start date under 28 U.S.C. 2244(d)(1)(C) because his claim is based on the United States ...


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