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Smith v. Soto

United States District Court, Ninth Circuit

September 27, 2013

J. SMITH, aka TAHEE RASHEED, Petitioner,
v.
J. SOTO, Warden, et al., Respondents.

ORDER OF DISMISSAL

WILLIAM H. ORRICK, District Judge.

INTRODUCTION

Petitioner J. Smith seeks federal habeas relief from his state convictions. Respondents move to dismiss as untimely the petition for such relief. For the reasons set forth below, respondents' motion is GRANTED. The petition is DISMISSED.

BACKGROUND

In 1999, Smith was convicted of grand theft property and burglary by a San Mateo County Superior Court jury, and was sentenced to an indeterminate term of twenty-eight years to life in state prison. The state appellate court affirmed his convictions, and the state supreme court denied his petition for direct review in 2000. From 2000 to 2011, Smith has filed over twenty petitions for relief in the state courts, all of which were denied. He also has filed at least fifteen actions in federal court, all of which are closed.

DISCUSSION

I. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to every federal habeas petition filed on or after April 24, 1996, contains a statute of limitations codified at 28 U.S.C. § 2244(d). Federal habeas petitions 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 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 collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See id. § 2244(d)(1). "[W]hen a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires." Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).

II. Timeliness of the Petition

The following facts are undisputed. On July 26, 2000, the state supreme court denied Smith's petition for direct review. He then had one year and ninety days, that is, until October 24, 2001, to file a timely federal habeas petition. The instant petition, however, was not filed until November 9, 2011, [1] well after the October 24, 2001 deadline. On this record, absent statutory or equitable tolling, the petition is barred by AEDPA's statute of limitations and must be dismissed.

1. Statutory Tolling

For purposes of statutory tolling, the time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year limitations period. See 28 U.S.C. § 2244(d)(2).

The two petitions he filed prior to the state supreme court's denial of his petition for review (one in 1999 and the other in 2000) cannot toll the statute of limitations because the statute had not started to run prior to their filing. Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008). The two petitions he filed asking for transcripts (on August 2 and October 5, 2000) cannot toll the limitations period because they did not challenge the convictions, but rather were requests for documents. Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009) (citing Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001)).

His January 11, 2001 habeas petition, filed 169 days after his conviction became final, does toll the statute because it challenged the convictions and was filed before the October 24, 2001 deadline. The state appellate court denied the petition on January 30, 2001. He filed another petition on February 8, 2001, which the state appellate court denied on February 15, 2001. His next state petition was not filed until over two years later, on May 15, 2003.[2] Since 2003, he has filed many state petitions. Federal habeas petitions cannot serve to toll the statute of limitations period, therefore ...


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