United States District Court, E.D. California
JOHNNIE F. WILLIAMS, Petitioner,
RONALD RACKLEY, Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se, with an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 7, 2017, respondent filed a motion to dismiss this
action on the grounds that it was filed beyond the one-year
statute of limitations. Petitioner did not file an opposition
to the motion, and on April 14, 2017, he was ordered to show
cause why his failure to file an opposition should not be
deemed a waiver of any opposition to the granting of the
motion. Twenty-one days have now passed, and petitioner has
not filed a response to the order to show cause or filed an
opposition to the motion to dismiss. As set forth below,
respondent's motion to dismiss should be granted.
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court. . . .” Id. The Court of Appeals for the
Ninth Circuit has referred to a respondent's motion to
dismiss as a request for the court to dismiss under Rule 4 of
the Rules Governing § 2254 Cases. See, e.g.,
O'Bremski v. Maass, 915 F.2d 418, 420 (1991).
Accordingly, the court reviews respondent's motion to
dismiss pursuant to its authority under Rule 4.
April 24, 1996, the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) was enacted. Section 2244(d)(1) of
Title 8 of the United States Code provides:
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).
2244(d)(2) provides that “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 shall not be counted toward” the
limitations period. 28 U.S.C. § 2244(d)(2). Generally,
this means that the statute of limitations is tolled during
the time after a state habeas petition has been filed, but
before a decision has been rendered. Nedds v.
Calderon, 678 F.3d 777, 780 (9th Cir. 2012). However,
“a California habeas petitioner who unreasonably delays
in filing a state habeas petition is not entitled to the
benefit of statutory tolling during the gap or interval
preceding the filing.” Id. at 781 (citing
Carey v. Saffold, 536 U.S. 214, 225-27 (2002)).
Furthermore, the AEDPA “statute of limitations is not
tolled from the time a final decision is issued on direct
state appeal and the time the first state collateral
challenge is filed because there is no case
‘pending' during that interval.” Nino v.
Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999),
overruled on other grounds by Carey, 536 U.S. at
214. In Carey, the United States Supreme Court held
that the limitation period is statutorily tolled during one
complete round of state post-conviction review, as long as
such review is sought within the state's time frame for
seeking such review. Id., 536 U.S. at 220, 222-23.
habeas petitions filed after the one-year statute of
limitations has expired do not revive the statute of
limitations and have no tolling effect. 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 ...