United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This action proceeds on the petition filed July
1, 2016, pursuant to the mailbox rule. Petitioner challenges
his 2011 convictions for second degree robbery. Pending
before the court is respondent's motion to dismiss on
grounds that this action is barred by the statute of
limitations. (ECF No. 11.) For the reasons stated herein, the
undersigned recommends that respondent's motion be
Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which became law on April 24, 1996,
imposed for the first time a statute of limitations on
petitions for a writ of habeas corpus filed by state
prisoners. This statute of limitations provides that, //// A
1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody, pursuant to
the judgment of a State court. The limitation period shall
run from the latest of -
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244 (d)(1).
California Supreme Court denied petitioner's petition for
review on August 27, 2014. (Respondent's Lodged Document
4.) Therefore, petitioner's conviction became final 90
days later on November 25, 2014, when the period for filing a
petition for writ of certiorari with the United States
Supreme Court expired. See Bowen v. Roe, 188 F.3d
1157 (9th Cir. 1999). The one year limitations period
commenced running the following day, i.e., November 26, 2014.
See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th
instant action is not timely unless petitioner is entitled to
statutory or equitable tolling.
Statutory Tolling Legal Standard
2244(d)(2) suspends the limitations period not only for the
time during which a “properly-filed” application
for post-conviction relief is “pending” in state
court but also, in appropriate circumstances, “during
the intervals between the denial of a petition by one court
and the filing of a new petition at the next level, if there
is not undue delay.” Biggs v. Terhune, 339
F.3d 1045, 1046 (9th Cir. 2003); see also Carey v.
Saffold, 536 U.S. 214, 219-225 (2002) (in California
cases, a post-conviction matter is “pending”
between the denial of a petition in a lower court and the
filing, “within a reasonable time, ” of a
“further original state habeas petition in a higher
court”). Continuous tolling under Section
2244(d)(2)-commonly referred to as interval or gap tolling-is
available only if a prisoner acted promptly in seeking relief
at the next state court level. See Evans v. Chavis,
546 U.S. 189, 191-92 (2006); Pace v. DiGuglielmo,
544 U.S. 408, 413-14 (2005).
statute of limitations is not tolled between the time the
petitioner's conviction becomes final on direct review
and the time the first state collateral challenge is filed
because there is no case “pending” during that
time. Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir.
of State Court
Pursuant to the mailbox rule, petitioner filed his first
state habeas petition in the Sacramento County Superior Court
on January 30, 2013. (Respondent's Lodged Document 5.)
The Superior Court denied this petition on March 13, 2013.
(Respondent's Lodged Document 6.)
to the mailbox rule, petitioner filed his next state habeas
petition in the California Supreme Court on February 7, 2016.
(Respondent's Lodged Document 7.) The California Supreme
Court denied this petition, without comment or citation, on
April 20, 2016. (Respondent's Lodged Document 8.)
is not entitled to statutory tolling for his first state
habeas petition because it was denied before the effective
date of the statute of limitations. See Waldrip v.
Hall, 548 F.3d 729, 735 (9th Cir. 2008) (state petition
denied before statute of limitations started to run
“had no effect on the timeliness of the ultimate
is not entitled to statutory tolling for the petition filed
in the California Supreme Court because it was filed after
the statute of limitations expired. 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.”); Jiminez v. Rice, 276
F.3d 478, 482 (9th Cir. 2001) (filing a state habeas petition
after the AEDPA statute of limitations had expired
“resulted in an absolute time bar”).
reasons stated herein, the undersigned also finds that
petitioner is not entitled to gap tolling for the almost
three years between the time the Superior Court denied his
petition and when he filed his petition in the California
California law, a habeas petition is timely only if filed
within a “reasonable time.” See Chavis,
546 U.S. at 192. Because “California courts had not
provided authoritative guidance on this issue, ” the
Supreme Court in Chavis “made its own
conjecture … ‘that California's
“reasonable time” standard would not lead to
filing delays substantially longer than' between 30 and
60 days.” Robinson v. Lewis, 795 F.3d 926, 929
(9th Cir. 2015) (quoting Chavis, 546 U.S. at 199).
However, if a petitioner demonstrates good cause, California
courts allow a longer delay. Robinson, 795 F.3d at
929 (citing In re Robbins, 18 Cal.4th 770, 780 (Cal.
1998)). A petition that has been substantially delayed may
nevertheless be considered on the merits if the petitioner
can establish good cause for the delay, such as investigation
of a potentially meritorious claim, or to avoid piecemeal
presentation of claims. Robbins, 18 Cal.4th at 780.
the timeliness of a federal habeas petition is at issue, and
there is not clear indication by the state court whether or
not the underlying claim was timely, “the federal court
‘must itself examine the delay in each case and
determine what the state courts would have held in respect to
timeliness.'” Stewart v. Cate, 757 F.3d
929, 935 (9th Cir. 2014) (quoting Chavis.) In other
words, even if the California court did ...