United States District Court, N.D. California
ORDER OF DISMISSAL DOCKET NO. 20
M. CHEN, United States District Judge
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.
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.
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.)
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.) 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 #
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.)
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).
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).
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.
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
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 ...