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Shellock v. Biter

United States District Court, Ninth Circuit

July 31, 2013

GENESIS SHELLOCK, Petitioner,
v.
M. D. BITER, Warden, Respondent.

ORDER DENYING MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE

SUSAN ILLSTON, District Judge.

INTRODUCTION

Genesis Shellock, an inmate at the Kern Valley State Prison, filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss on the ground of untimeliness, which Shellock has opposed. For the reasons discussed below, the court concludes that the action is not time-barred, and sets a briefing schedule for the merits of the claims.

BACKGROUND

Following entry of a plea of nolo contendere, Shellock was convicted in the Santa Clara County Superior Court of receiving a stolen vehicle by someone who has a prior theft conviction and transportation of methamphetamine. See Cal. Penal Code §§ 496d, 666.5; Cal. Health & Saf. Code § 11379(a). He admitted having suffered two prior strike convictions, and the court found true an allegation of a third strike conviction. The court sentenced Shellock to 25 years to life in prison.

He appealed. The California Court of Appeal affirmed the judgment of conviction on June 29, 2007. The California Supreme Court denied Shellock's petition for review on September 12, 2007.

Shellock also filed several habeas petitions in state court, some of which were pending during overlapping time periods.

Case No. H030924: Shellock filed a petition for writ of habeas corpus in the California Court of Appeal on November 29, 2006 (i.e., Case No. H030924). The appellate court issued an order to show cause on June 29, 2007, returnable in the Santa Clara County Superior Court. On February 25, 2009, the Santa Clara County Superior Court denied the habeas petition.

Case No. H034283: Shellock filed another petition for writ of habeas corpus in the California Court of Appeal on June 1, 2009 (i.e., Case No. H034283). The petition was denied on May 26, 2011.[1]

Case No. S194560: On July 6, 2011, Shellock filed a petition for writ of habeas corpus in the California Supreme Court (i.e., Case No. S194560). That petition was denied on September 14, 2011.

Shellock then filed this action, seeking a writ of habeas corpus. The federal petition has a signature date of September 12, 2012, came to the court in an envelope without a readable postmark, was stamped "received" at the court on September 26, 2012, and was stamped "filed" at the court on October 2, 2012. Respondent concedes that Shellock gave his petition to prison officials for mailing on September 13, 2012. Due to Shellock's status as a prisoner proceeding pro se, he receives the benefit of the prisoner mailbox rule, which deems most documents filed when they are given to prison officials to mail to the court rather than the day the document reaches the courthouse. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). For purposes of the present motion, the federal petition is deemed filed as of September 13, 2012.

DISCUSSION

A. The Petition Is Not Time-Barred

Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time has passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on ...


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