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Dyson v. Warden, California Correctional Intitution

United States District Court, E.D. California

July 12, 2019

TYRONE DYSON, Petitioner,
v.
WARDEN, CALIFORNIA CORRECTIONAL INSTITUTION, Respondent.

          FINDINGS & RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent's motion to dismiss the petition as untimely. (ECF No. 14.)

         I. Factual and Procedural Background

         On December 7, 2012, petitioner was convicted of rape, penetration with a foreign object, forcible oral copulation, two counts of assault with a deadly weapon, making threats, and torture. (ECF No. 1 at 1; ECF No. 15-1 (Lod. Doc. 1) at 1, 3.) He was sentenced to three consecutive, determinate sixteen-year prison terms, plus enhancements, and an indeterminate term of twenty years to life. (Lod. Doc. 1 at 1, 3; ECF No. 22-1 (Lod. Doc. 13) at 1, 3.)

         A. Direct Review

         Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District, which modified the judgment to add an additional day of presentence conduct credit and affirmed the judgment as modified on May 25, 2016. (ECF No. 1 at 2; ECF No. 15-2 (Lod. Doc. 2) at 15.) The trial court was directed to correct a separate clerical error and to amend the abstract of judgment to reflect the modified judgment. (Lod. Doc. 2 at 14-15.) Petitioner then petitioned for review of the Court of Appeal's decision in the California Supreme Court. (ECF No. 1 at 2; ECF No. 15-3 (Lod. Doc. 3).) The California Supreme Court denied the petition for review on August 10, 2016. (ECF No. 15-4 (Lod. Doc. 4).) Petitioner did not petition the United States Supreme Court for certiorari. (ECF No. 1 at 3.)

         B. State Collateral Review

         On October 30, 2017, [1] petitioner filed a pro se petition for writ of habeas corpus in the Yuba County Superior Court. (ECF No. 1 at 3; ECF No. 15-5 (Lod. Doc. 5).) The petition was denied on January 2, 2018. (ECF No. 1 at 3-4; ECF No. 15-6 (Lod. Doc. 6).)

         Petitioner filed a pro se petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District on January 21, 2018. (ECF No. 1 at 4; ECF No. 15-7 (Lod. Doc. 7).) The petition was denied February 1, 2018. (ECF No. 15-8 (Lod. Doc. 8).) On February 27, 2018, petitioner filed another pro se petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (ECF No. 15-9 (Lod. Doc. 9).) The petition was denied on March 15, 2018. (ECF No. 1 at 4; ECF No. 15-10 (Lod. Doc. 10).)

         On April 22, 2018, petitioner filed a pro se petition for writ of habeas corpus in the California Supreme Court (ECF No. 1 at 4; ECF No. 15-11 (Lod. Doc. 11)), which was denied on August 8, 2018 (ECF No. 1 at 5; ECF No. 15-12 (Lod. Doc. 12)).

         C. Federal Petition

         The instant petition was filed on September 30, 2018. (ECF No. 1.)

         II. Motion to Dismiss

         Respondent moves to dismiss the petition on the ground that it is untimely. (ECF No. 14.) He argues that, without tolling, petitioner had until November 8, 2017, to file a petition in federal court. (Id. at 3.) He further asserts that even if petitioner is entitled to tolling for his first two state habeas petitions, the statute of limitations was tolled for only ninety-five days and expired on February 11, 2018. (Id. at 4-5.) Respondent argues that petitioner is not entitled to tolling for the third and fourth petitions because the third petition was filed in the same court as the second petition, so petitioner was not entitled to gap tolling and the statute of ...


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