United States District Court, N.D. California
ORDER OF DISMISSAL, DKT. 17, 19, 20, 22, AND
WILLIAM H. ORRICK United States District Judge
Reginald Knockum seeks federal habeas relief from his state
convictions. Respondent moves to dismiss because
Knockum's petition is untimely. Knockum's conviction
was final in 2011, but his federal habeas petition was not
filed until 2017, well past the one-year filing period
established by the statute of limitations. He is not entitled
to either statutory or equitable tolling. His first attempt
at any sort of judicial review was filed in 2016 and he
offers no reason for the lengthy delay. Accordingly, the
motion to dismiss is GRANTED. The petition is DISMISSED.
2011, Knockum pleaded no contest in state court to one count
of first degree residential robbery; six counts of attempted
first degree residential robbery; and a personal firearm use
enhancement as to each count. (Mot. to Dismiss
(“MTD”), Dkt. No. 17-1 (State Court Minute) at
2.) On July 22nd of that year, he was sentenced to 37 years
in state prison. (Second Am. Pet., Dkt. No. 9 at 1-3; Dkt.
No. 9-1 at 6.) He did not appeal.
2016, petitioner filed habeas petitions in the state
superior, appellate, and supreme courts. (Second Am. Pet.,
Dkt. No. 9 at 3; MTD, Dkt. No. 17-1 at 10-11, 14, 16, 211.)
All were denied that same year. (Id.) This federal
habeas petition followed in 2017.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which applies to every federal habeas
petition filed on or after April 24, 1996, has a statute of
limitations, which is codified at 28 U.S.C. § 2244(d).
Federal habeas petitions 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 not
have been discovered through the exercise of due diligence.
See Id. § 2244 (d)(1). “[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).
Timeliness of the Petition
he did not file an appeal, Knockum's conviction became
final on September 20, 2011, which was 60 days after he was
sentenced (July 22, 2011). See Cal. Rules of Court,
rule 8.308(a). He then had one year, until September 21,
2012, to file a timely federal habeas petition. The instant
petition, however, was not filed until June 12, 2017,
well after the September 21, 2012 deadline. On this record,
absent sufficient statutory or equitable tolling, the
petition is barred by AEDPA's statute of limitations and
must be dismissed.
purposes of statutory tolling, the time during which a
properly filed application for state post-conviction or other
collateral review is pending is excluded from the one-year
limitations period. See 28 U.S.C. § 2244(d)(2).
is not entitled to any statutory tolling. His state petitions
were filed in 2016, that is, after the limitations period
expired on September 21, 2012. They therefore cannot toll the
limitations clock. See Ferguson v. Palmateer, 321
F.3d 820, 823 (9th Cir. 2003). “Once the limitations
period is expired, collateral petitions can no longer serve