United States District Court, C.D. California, Western Division
MEMORANDUM AND ORDER DISMISSING PETITION
ANDREW J. WISTRICH, Magistrate Judge.
Petitioner was convicted of first degree murder, and the jury found true allegations that petitioner personally discharged a firearm in the commission of the murder and committed the murder for the benefit of a criminal street gang. Petitioner was sentenced to state prison for two consecutive terms of 25 years to life. [Lodged Documents ("LDs") 1-2]. On December 23, 2013, petitioner filed this petition for a writ of habeas corpus challenging that conviction. Respondent filed a motion to dismiss the petition on April 8, 2014, arguing, among other things, that the petition is untimely. Petitioner did not file an opposition to the motion.
Section 2244(d) imposes a one-year statute of limitation for the filing of habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d). The one-year limitation period in petitioner's case began to run on the date on which the judgment became final. 28 U.S.C. § 2244(d)(1)(A).
The California Court of Appeal affirmed petitioner's conviction on February 28, 2012, and, on May 16, 2012, the California Supreme Court denied review. [Petition, Attachment]. Petitioner's conviction became final ninety days later - on August 14, 2012 - when the time for filing a petition for a writ of certiorari expired. Caspari v. Bohlen , 510 U.S. 383, 390 (1994); Wixom v. Washington , 264 F.3d 894, 897 (9th Cir. 2001), cert. denied, 534 U.S. 1143 (2002). Absent tolling, the limitation period expired one year later, on August 14, 2013. See Patterson v. Stewart , 251 F.3d 1243, 1245-1246 (9th Cir. 2001), cert. denied, 534 U.S. 978 (2001).
This petition, however, was not filed until December 23, 2013, more than four months after the limitation period expired. Absent grounds for statutory or equitable tolling of the limitation period, the petition is time-barred.
The limitation period does not run while a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). See Carey v. Saffold , 536 U.S. 214, 218-219 (2002).
On March 13, 2013, petitioner filed a petition in the California Superior Court. [LD 6]. That petition was denied on April 16, 2013. [LD 7]. Tolling the limitation period for time that this petition was pending, petitioner had an additional 34 days - until September 17, 2013 - to file his federal petition. Even after taking statutory tolling into account, however, petitioner did not file his federal petition until more than three months after the limitation period had expired.
The limitation period also can be equitably tolled. Petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary xcircumstance stood in his way." Holland v. Florida , 560 U.S. 631, 649 (2010)(quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). "Equitable tolling is only appropriate if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Randle v. Crawford , 604 F.3d 1047, 1057 (9th Cir.) (quotation marks and citation omitted), cert. denied, 131 S.Ct. 474 (2010).
Petitioner does not allege, and nothing in the record suggests, that extraordinary circumstances prevented him from timely filing a federal petition. Accordingly, he is not entitled to equitable tolling.
For the foregoing reasons, the petition is ...