United States District Court, N.D. California
OSCAR L. MENJIVAR, Petitioner,
SCOTT FRAUENHEIM, Respondent.
ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. No. 8
JAMES DONATO, District Judge.
Oscar Menjivar, a pro se state prisoner, has brought a habeas petition under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss on the grounds that the petition is barred by the statute of limitations. Menjivar has filed an opposition, and respondent has filed a reply. The motion is granted.
I. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on petitions for writs of habeas corpus filed by state prisoners. 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: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) 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 (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. 28 U.S.C. § 2244(d)(2). The one-year period generally will run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
The one-year period may also start running from "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A). "Direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, if a petitioner fails to seek a writ of certiorari from the United States Supreme Court, AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by United State Supreme Court Rule 13 expires. See Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (where petitioner did not file petition for certiorari, his conviction became final 90 days after the California Supreme Court denied review); Bowen, 188 F.3d at 1159 (same).
In 2009, Menjivar was sentenced to 29 years to life in prison for first degree murder. Motion to Dismiss ("MTD") at 2. The California Court of Appeal affirmed the judgment on March 17, 2011. MTD, Ex. 1 at attachment. Menjivar filed a petition for review in the California Supreme Court on April 14, 2011, that was denied on June 8, 2011. MTD, Ex. 1, 2.
On August 11, 2014, Menjivar filed a petition for writ of habeas corpus in the California Supreme Court. MTD, Ex. 3. The petition was denied on October 15, 2014. MTD, Ex. 4. This federal petition was filed on November 5, 2014.
Here, Menjivar had ninety days from June 8, 2011, when the state high court denied review, to file a petition for a writ of certiorari with the United State Supreme Court. See Bowen, 188 F.3d at 1159. He did not. Thus, petitioner's one-year limitations period began to run on September 7, 2011, and expired on September 6, 2012. See 28 U.S.C. § 2244(d)(1).
A habeas petition was filed in the California Supreme Court on August 11, 2014, nearly two years after the expiration of the statute of limitations. Menjivar will not receive statutory tolling for this petition as it was filed after the expiration of the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed, " even if the state petition was timely filed). Thus, this petition filed on November 5, 2014, is untimely by several years unless saved by equitable tolling.
C. Equitable Tolling
AEDPA's one-year statute of limitations is subject to equitable tolling in limited circumstances. Holland v. Florida, 560 U.S. 631, 649 (2010). "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 649 (internal quotation marks omitted); accord Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) ("When external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate."). The diligence required to establish entitlement to equitable tolling is "reasonable diligence." Holland, 560 U.S. at 653.
Petitioner bears the burden of showing "extraordinary circumstances were the cause of his untimeliness." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (internal quotation marks omitted). Where a petitioner fails to show "any causal connection" between the grounds upon which he asserts a right to equitable tolling and his inability to timely file a federal habeas application, the equitable tolling claim will be denied. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005). Further, such petitioner must show "his untimeliness was caused by an external impediment and not by his own ...