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Malmin v. Spearman

United States District Court, N.D. California, San Francisco Division

March 24, 2014

THOMAS DAVID MALMIN, Petitioner,
v.
MARION SPEARMAN, Warden, Respondent.

ORDER OF DISMISSAL

RICHARD SEEBORG, District Judge.

INTRODUCTION

Petitioner seeks federal habeas relief from his state convictions. Respondent moves to dismiss as untimely the petition for such relief. For the reasons discussed herein, respondent's motion to dismiss (Docket No. 11) is GRANTED. The petition is DISMISSED.

DISCUSSION

A. 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 28 U.S.C. § 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).

B. Timeliness of the Petition

On April 23, 2010, petitioner was sentenced in the Santa Cruz Superior Court. He did not appeal. Therefore, his conviction became final on June 22, 2010, which was 60 days after the time for filing an appeal had passed. See Cal. Rule of Court 8.104. Petitioner, then, had one year, that is, until June 23, 2011, to file a timely federal habeas petition.[1] The instant federal habeas petition was filed on May 21, 2013, [2] which is well after the June 23, 2011 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). On November 17, 2011, petitioner filed his first state habeas petition. As noted above, the federal filing deadline was June 23, 2011.

Petitioner is not entitled to statutory tolling. A state habeas petition, here the one filed on November 11, 2011, cannot toll the limitation period because it was filed after AEDPA's statute of limitations ended on June 23, 2011. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Section 2244(d)(2) cannot "revive" the limitation period once it has run (i.e., restart the clock to zero); it can only serve to pause a clock that has not yet fully run. "Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations." Rashid v. Kuhlmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998).

Because petitioner filed his first state habeas petition after the filing date for a federal habeas petition, he is not entitled to statutory tolling. Absent a showing of equitable tolling, the petition must be dismissed.

2. Equitable Tolling

A federal habeas petitioner is entitled to equitable tolling if he can show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, ...


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