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Knockum v. Gastelo

United States District Court, N.D. California

May 3, 2018

REGINALD KNOCKUM, Petitioner,
v.
JOSIE GASTELO, Respondent.

          ORDER OF DISMISSAL, DKT. 17, 19, 20, 22, AND 23

          WILLIAM H. ORRICK United States District Judge

         INTRODUCTION

         Petitioner 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.

         BACKGROUND

         In 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.[1]

         In 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.

         DISCUSSION

         I. Standard of Review

         The 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).

         II. Timeliness of the Petition

         Because 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.[2] The instant petition, however, was not filed until June 12, 2017, [3] 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.

         A. Statutory Tolling

         For 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).

         Knockum 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 ...


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