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Kelly v. Beard

United States District Court, S.D. California

March 6, 2014

JOHN E. KELLY, Petitioner,
JEFFREY BEARD, Respondent.


DANA M. SABRAW, District Judge.

Before the Court is United States Magistrate Judge Karen S. Crawford's Report and Recommendation ("R&R") recommending that the Court grant Respondent Jeffrey Beard's ("Respondent") motion to dismiss the present Petition as untimely. There are no objections to the R&R. For the reasons set forth below, this Court ADOPTS the R&R and DISMISSES the Petition in its entirety.



Petitioner is a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, challenging his 1997 conviction and sentence for robbery. Respondent asserts the Petition is barred by AEDPA's one-year statute of limitations. Magistrate Judge Crawford agreed with Respondent, and recommended that the Court grant Respondent's motion to dismiss.

A. Standard of Review

The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the which objection is made[, ]" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005). In this case, there are no objections to the R&R. However, there are a few modifications that need to be made to the analysis of statutory tolling.

B. Statute of Limitations

AEDPA sets out a one-year period of limitation for state habeas corpus petitions. See 28 U.S.C.A. § 2244(d)(1). It provides:

The limitation period shall run from the latest of B

(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).

Here, there is a dispute about whether Petitioner is challenging a 1991 conviction or his 1997 conviction. Assuming Petitioner is challenging his 1991 conviction, the Magistrate Judge found the present Petition would be untimely, and the Court agrees with that analysis.

Assuming Petitioner is challenging his 1997 conviction, the Magistrate Judge also found the present Petition would be untimely. The Court agrees with that conclusion, but with the following modifications to the analysis.

The Magistrate Judge found Petitioner's 1997 conviction became final on March 16, 1999, ninety days after the California Supreme Court denied Petitioner's co-defendant's petition for review. However, as the Magistrate Judge pointed out, the petition for review was filed on behalf of Petitioner's co-defendant. Petitioner did not file a petition for review of the court of appeal decision. Therefore, the court of appeal decision became final as to Petitioner on October 9, 1998. See Cal. Rule of Court 8.264(b)(1). Petitioner had ten days from that date, or until October 20, 1998, in which to file a petition for review, see Cal. Rule of Court 8.500(e)(1), which he did not do. Thus, his conviction became final on that date, October 20, 1998, and he had until October 20, 1999, within which to file his federal habeas petition.

Petitioner did not file his federal petition by that date. However, on September 21, 1999, he did file a habeas petition in the San Diego Superior Court. ( See Lodgment 22.) By that date, 336 days had expired from his one-year statute of limitations. While that petition was pending, Petitioner's statute of limitation was tolled. See 28 U.S.C. §2244(d)(2). The statute of limitations continued to be tolled while Petitioner filed four additional petitions in Superior Court and one petition in the California Court of Appeal. See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) ( per curiam ) (stating successive or subsequent petitions warrant tolling of the statute of limitations if they are "limited to an elaboration of the facts relating to the claims in the first petition" and "denied on the merits[.]") The last of those petitions was filed in Superior Court on April 17, 2001, and denied on May 30, 2001. ( See Lodgments 32, 33.)

Petitioner thereafter filed two additional petitions in the Court of Appeal, ( see Lodgments 34, 35), which were denied as untimely. ( See Lodgments 36, 37.) Thus, Petitioner's statute of limitations restarted on May 30, 2001, when the Superior Court denied his last habeas petition. King, 340 F.3d at 823 (stating time gap between second or successive petitions is not tolled if second or successive petition is deemed untimely). As of that date, Petitioner had 29 days left to file his federal habeas petition. He did not do so. Nor did he file any additional petitions in state court that could have further tolled his statute of limitations. ( See Lodgments 34, 35) (filed on July 6, 2001, or 37 days after May 30, 2001).

With these modifications, the Court agrees with the Magistrate Judge's finding that, to the extent Petitioner is challenging his 1997 conviction, the present Petition is untimely.



For the reasons stated above, the Court ADOPTS the recommendation contained in the Magistrate Judge's R&R, GRANTS Respondent's motion to dismiss and DISMISSES this case with prejudice.


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