United States District Court, N.D. California
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS;
DENYING CERTIFICATE OF APPEALABILITY RE: DKT. NO. 10
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
a pro se prisoner, filed this action for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Respondent
has moved to dismiss the petition as untimely. Petitioner did
not file any opposition to the motion, and the time to do so
convicted petitioner of inflicting corporal injury resulting
in a traumatic condition on a former cohabitant (Cal. Pen.
Code § 273.5, subd. (a)), assault with force likely to
cause great bodily injury (Cal. Pen. Code § 245, subd.
(a)(1)), and resisting arrest (Cal. Pen. Code § 148,
subd. (a)(1)). Ex. A at 2. On December 2, 2011, the trial court
sentenced petitioner to 25 years to life in state prison. Ex.
C at 12. On August 20, 2013, the California Court of Appeal
modified the judgment so as to strike a domestic violence
fine but otherwise affirmed. Ex. A at 6. The California
Supreme Court denied review on October 30, 2013. Ex. C at 2.
March 27, 2015, petitioner filed a petition for writ of
habeas corpus in the California Supreme Court. Ex. B at 2.
The petition was denied on July 8, 2015. Id.
then filed this action, seeking a writ of habeas corpus. The
petition has a signature date of July 27, 2015 and was
stamped “filed” at the Court on August 3, 2015.
As a pro se prisoner, petitioner receives the
benefit of the prisoner mailbox rule, which deems most
documents filed when the prisoner gives them to prison
officials to mail to the court. See Stillman v.
LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The Court
will assume he gave the petition to prison officials for
mailing on the date he signed it, i.e., July 27, 2015, and
deem the federal petition filed as of that date.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) became law on April 24, 1996 and
imposed for the first time a statute of limitations on
petitions for a writ 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: (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. 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. Id. §
the judgment became final and the limitations period began on
January 28, 2014, ninety days after the California Supreme
Court denied review. See Bowen v. Roe, 188 F.3d
1157, 1159 (9th Cir. 1999) (if 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). The presumptive deadline for petitioner to file
his federal petition was January 27, 2015. He missed that
deadline by six months, so unless he qualifies for tolling,
the petition is untimely.
does not claim he is entitled to statutory tolling. Even if
petitioner had claimed such tolling, however, he would not be
eligible for it. Pursuant to 28 U.S.C. § 2244, 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 or claim is pending.”
See 28 U.S.C. § 2244(d)(2). An application for
review remains “pending” in state court until it
“has achieved final resolution through the
State’s post-conviction procedures.” Carey v.
Saffold, 536 U.S. 214, 220 (2002).
petitioner did not file his first state habeas petition until
March 27, 2015, two months after the limitations period under
AEDPA had expired. See Ex. B. A state habeas
petition filed before AEDPA’s statute of limitations
begins to run tolls the limitations period. Jiminez v.
Rice, 276 F.3d 478, 482 (9th Cir. 2001). However, a
state habeas petition filed after AEDPA’s statute of
limitations ended cannot toll the limitations period. See
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)
(“section 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
the Court finds the petition is not rendered timely on the
basis of statutory tolling.