Kelly v. Beard

          ORDER OF DISMISSAL DOCKET NO. 20

          EDWARD M. CHEN, United States District Judge

         I. INTRODUCTION

         Joseph Kelly filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the habeas petition as untimely, and Mr. Kelly has opposed the motion. For the reasons discussed below, the Court dismisses the action as untimely because the statute of limitations deadline expired ten months before Mr. Kelly filed his habeas petition.

         II. BACKGROUND

         Mr. Kelly was convicted in Alameda County Superior Court of first degree murder, and was found to have personally used and intentionally discharged a firearm causing great bodily injury and death. He admitted having suffered a prior prison term. On March 18, 2011, he was sentenced to a total term of 51 years to life in state prison.

         Before he was even sentenced, Mr. Kelly filed a habeas petition in the Alameda Superior Court on February 21, 2011, which was denied on March 22, 2012 because the appeal had been filed by then and the court file was at the court of appeal. (State Habeas Petition # 1.) Mr. Kelly appealed and, during the pendency of the appeal, filed two state habeas petitions. On December 21, 2012, the California Court of Appeal affirmed the judgment of conviction. Also on December 21, 2012, the court denied Mr. Kelly's habeas petition (i.e., Case No. A135116). (State Habeas Petition # 2.) On March 27, 2013, the California Supreme Court denied Mr. Kelly's petition for review. Docket No. 1-1 at 2. On August 28, 2013, the California Supreme Court denied his habeas petition (i.e., Case No. S211363) that had been filed on January 30, 2013. Docket No. 1-1 at 3 5. (State Habeas Petition # 3.)

         Mr. Kelly filed another round of state habeas petitions after his appeal finished. He filed a habeas petition on January 14, 2014, in the Alameda County Superior Court that was denied on March 18, 2014. (State Habeas Petition # 4.)^[1] Docket No. 1-1 at 36-38. The superior court denied the petition on several grounds, including that it was untimely. Id. Mr. Kelly filed a habeas petition (i.e., Case No. A141957) in the California Court of Appeal on May 30, 2014, that was denied on June 19, 2014. (State Habeas Petition # 5.) Mr. Kelly filed a habeas petition (i.e., Case No. S222143) in the California Supreme Court on October 24, 2014, that was denied on January 14, 2015. (State Habeas Petition # 6.)^[2]

         Mr. Kelly filed a third round of habeas petitions in state court, which partially overlapped the second round. Mr. Kelly filed a habeas petition (i.e., Case No. A142960) in the California Court of Appeal on September 12, 2014, that was denied on October 2, 2014. (State Habeas Petition # 7.) Mr. Kelly filed a habeas petition (i.e., Case No. S225350) in the California Supreme Court on March 24, 2015, that was denied on July 15, 2015, with a citation to In re Clark, 5 Cal.4th 750, 767, 769 (1993) (successive petitions not permitted). (State Habeas Petition # 8.)

         Mr. Kelly then filed his federal habeas petition. His federal habeas petition has a proof of service showing that he mailed it to the court on April 9, 2015. Docket No. 1-4 at 45. The petition was stamped "filed" at the courthouse on April 17, 2015. Docket No. 1 at 1. Applying the prison mailbox rule, the Court assumes for present purposes that Mr. Kelly gave his petition to prison officials to mail on the date he signed the proof of service, and deems the petition to have been filed as of April 9, 2015. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule provides that pro se prisoner's filing of a document is deemed to have occurred when he gives it to prison officials to mail to the court).

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or sentences 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 has 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. 28 U.S.C. § 2244(d)(1).

         The limitations period in this case began when the judgment became final upon "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244(d)(1)(A). "[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). The California Supreme Court denied Mr. Kelly's petition for review on March 27, 2013. His conviction became final 90 days thereafter, on June 25, 2013, because he did not petition for writ of certiorari. See Greene v. Fisher, 132 S.Ct. 38, 44 (2011) ("Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of); see also Cal. Rule of Court 8.366(b), 8.500(e). However, Mr. Kelly also had State Habeas Petition # 3 pending in the California Supreme Court on June 25, 2013, so the clock on his one-year limitations which otherwise would have started the next day (i.e., June 26, 2013) was paused until the California Supreme Court denied Habeas Petition # 3 on August 28, 2013.

         Mr. Kelly argues that the limitations period does not begin until the expiration of the period during which a defendant could file a petition for writ of habeas corpus in the U.S. Supreme Court and he has not taken that step yet. Docket No. 21 at 7. He appears to contend that he can prevent the one-year limitations period from ever starting by not filing a petition for writ of certiorari. This view is incorrect. There is a set time limit of 90 days to file a petition for writ of certiorari after the California Supreme Court denies review. Even though Mr. Kelly did not petition for writ of certiorari, his 90-day time limit to do so expired on June 25, 2013, and at that point a petition for writ of certiorari became "time barred." Greene, 132 S.Ct. at 43.

         The one-year limitations period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment ...