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Title: Aaron Leroy Montgomery v. Connie Gipson

April 2, 2013

TITLE: AARON LEROY MONTGOMERY
v.
CONNIE GIPSON



The opinion of the court was delivered by: Honorable Suzanne H. Segal, United States Magistrate Judge

CIVIL MINUTES - GENERAL

DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS UNTIMELY

PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

Marlene Ramirez None None Deputy Clerk Court Reporter/Recorder Tape No. ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENT: None Present None Present PROCEEDINGS: (IN CHAMBERS)

On November 20, 2012, Aaron Leroy Montgomery ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. However, the Petition appears to be untimely on its face.

The Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). Under 28 U.S.C. § 2244(d)(1), as amended, state prisoners have only one year in which to file their federal habeas petitions. The one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) begins to 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.

28 U.S.C. § 2244(d)(1)(A)-(D). The applicable limitations period here is that set forth in 28 U.S.C. § 2244(d)(1)(A).

As indicated above, a petitioner ordinarily has one year from the date that his conviction becomes final to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). A conviction becomes final with "the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, direct review concluded on February 18, 2010, when the California Supreme Court denied Petitioner's direct appeal. (See California Appellate Courts Case Information Website, Case No. S179373, http://appellatecases.courtinfo.ca.gov). Under 28 U.S.C. § 2244(d)(1), the AEDPA limitations period began to run the next day, on February 19, 2010, and expired on February 19, 2011. The instant petition was filed on November 20, 2012. Therefore, absent tolling, it is untimely by one year, nine months and one day.

AEDPA provides a statutory tolling provision that suspends the limitations period for the time during which a "properly filed" application for post-conviction or other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005). However, the tolling provision does not apply if a state habeas petition is filed after the limitations period has already expired. See, e.g., Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (28 U.S.C. § 2244(d) does not permit "reinitiation of the limitations period that has [already] ended"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (filing of state habeas petition after AEDPA limitations period expired "resulted in an absolute time bar to refiling after [petitioner's] state claims were exhausted").

The Petition does not indicate whether Petitioner filed a habeas petition in the Riverside County Superior Court, and if he did, when the petition was filed and when the superior court ruled on it. However, the California Appellate Courts Case Information website indicates that Petitioner filed a habeas petition with the California Court of Appeal on September 29, 2011, seven months and ten days after the AEDPA limitations period had already expired on February 19, 2011. (See California Appellate Courts Case Information Website, Case No. E054605, http://appellatecases.courtinfo.ca.gov). If Petitioner did not file a habeas petition in the superior court before filing his habeas petition with the court of appeal, or if the superior court petition, if any, was filed after February 19, 2011, it does not appear that Petitioner would be entitled to statutory tolling. Petitioner is advised that he *fn1 bears ...


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