United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is respondent's motion to
dismiss (Doc. 14), and petitioner's opposition (labeled a
traverse) (Doc. 15).
is challenging his 2012 conviction out of the Siskiyou County
Superior Court. His conviction was affirmed on appeal by the
California Court of Appeal on April 2, 2014. Petitioner's
petition for review in the California Supreme Court was
denied on June 11, 2014. No petition for writ of certiorari
was filed with the United States Supreme Court.
filed three state post-conviction petitions for writ of
habeas corpus, all in the Siskiyou County Superior Court. His
first state habeas petition was filed on July 14, 2012, and
denied August 21, 2012, his second was filed on August 30,
2012, and denied on October 10, 2012; and his third was filed
on September 12, 2012, and denied on October 10, 2012.
MOTION TO DISMISS
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254 Cases. The Ninth
Circuit has allowed respondents to file a motion to dismiss
in lieu of an answer if the motion attacks the pleadings for
failing to exhaust state remedies or being in violation of
the state's procedural rules. See, e.g.,
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990) (using Rule 4 to evaluate motion to dismiss petition
for failure to exhaust state remedies); White v.
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule
4 as procedural grounds to review motion to dismiss for state
procedural default); Hillery v. Pulley, 533 F.Supp.
1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a
respondent can file a motion to dismiss after the court
orders a response, and the Court should use Rule 4 standards
to review the motion. See Hillery, 533 F.Supp. at
1194 & n.12. The petitioner bears the burden of showing
that he has exhausted state remedies. See Cartwright v.
Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
brings this motion to dismiss petitioner's habeas corpus
petition as filed beyond the one-year statute of limitations,
pursuant to 28 U.S.C. § 2244(d). Petitioner contends his
petition was timely filed, and the date used by the
respondent was the incorrect filing date. To the extent
petitioner challenges the motion to dismiss as not a proper
response to his petition, as set forth above, a motion to
dismiss is authorized to challenge the timeliness of a
habeas corpus petitions must be filed within one year from
the later of: (1) the date the state court judgment became
final; (2) the date on which an impediment to filing created
by state action is removed; (3) the date on which a
constitutional right is newly-recognized and made retroactive
on collateral review; or (4) the date on which the factual
predicate of the claim could have been discovered through the
exercise of due diligence. See 28 U.S.C. §
2244(d). Typically, the statute of limitations will begin to
run when the state court judgment becomes final by the
conclusion of direct review or expiration of the time to seek
direct review. See 28 U.S.C. § 2244(d)(1).
petition for review by the California Supreme Court is filed
and no petition for certiorari is filed in the United States
Supreme Court, the one-year limitations period begins running
the day after expiration of the 90-day time within which to
seek review by the United States Supreme Court. See
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.
2001). The limitations period is tolled, however, for the
time a properly filed application for post-conviction relief
is pending in the state court. See 28 U.S.C. §
2244(d)(2). To be “properly filed, ” the
application must be authorized by, and in compliance with,
state law. See Artuz v. Bennett, 531 U.S. 4 (2000);
see also Allen v. Siebert, 552 U.S. 3 (2007);
Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding
that, regardless of whether there are exceptions to a
state's timeliness bar, time limits for filing a state
post-conviction petition are filing conditions and the
failure to comply with those time limits precludes a finding
that the state petition is properly filed). A state court
application for post-conviction relief is
“pending”during all the time the petitioner is
attempting, through proper use of state court procedures, to
present his claims. See Nino v. Galaza, 183 F.3d
1003, 1006 (9th Cir. 1999). It is not, however, considered
“pending” after the state post-conviction process
is concluded. See Lawrence v. Florida, 549 U.S. 327
(2007) (holding that federal habeas petition not tolled for
time during which certiorari petition to the Supreme Court
was pending). Where the petitioner unreasonably delays
between state court applications, however, there is no
tolling for that period of time. See Carey v.
Saffold, 536 U.S. 214 (2002). If the state court does
not explicitly deny a post-conviction application as
untimely, the federal court must independently determine
whether there was undue delay. See id. at 226-27.
is no tolling for the interval of time between
post-conviction applications where the petitioner is not
moving to the next higher appellate level of review. See
Nino, 183 F.3d at 1006-07; see also Dils v.
Small, 260 F.3d 984, 986 (9th Cir. 2001). There is also
no tolling for the period between different sets of
post-conviction applications. See Biggs v. Duncan,
339 F.3d 1045 (9th Cir. 2003). Finally, the period between
the conclusion of direct review and the filing of a state
post-conviction application does not toll the limitations
period. See Nino, 1983 F.3d at 1006-07.
petitioner is challenging his 2012 conviction. Petitioner
appealed his conviction to the California Court of Appeal,
which affirmed his conviction in April 2014. The California
Supreme Court denied review on June 11, 2014. As no petition
for certiorari was filed, the statute of limitations
commenced after the 90 day period of time for filing a
petition for writ of certiorari, or September 10, 2014. The
statute of limitations expired one year later, on September
9, 2015. The petition filed in this action was signed on
September 30, 2015, but was not received by the court to be
filed until October 28, 2015. Giving petitioner the benefit
of the mailbox rule, the effective filing date of his federal
habeas petition is September 30, 2015.
statutory tolling, petitioner filed three state habeas
petitions in 2012, all with the Siskiyou County Superior
Court. However, these petitions were all filed prior to the
commencement of the statute of limitations. While a properly
filed habeas petition may otherwise have tolled the statute
of limitations, as the state habeas petitions filed in this
instance had no tolling effect on the statute of limitation
as they were filed and denied prior to the commencement of
the statute of limitations. See Waldrip v. Hall, 548
F.3d 729, 735 (9th cir. 2008).
argues his petition is timely as it was deemed filed the day
he placed it in the prison official's hands, wherein they
signed and dated on the envelope. He claims the date he gave
it to prison officials for filing was September 2, 2015.
However, as stated above, a review the petition filed with
this court (Doc. 1) clearly shows the petition was signed and
the proof of service completed on September 30, 2015. There
was some delay in the court receiving the petition, as it was
not filed in this court until October 28, 2015. However, the
petition was signed September 30, 2015. There is nothing to
indicate that ...