United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. COTA 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 (ECF No. 10). Respondent contends the petition is
Gennel Edward Miles, Jr., was convicted in Sacramento County
Superior Court of first-degree murder, robbery in concert,
kidnaping, carjacking, and arson. See ECF No. 1, pg.
1; ECF No. 17, pg. 2. On April 19, 2013, he was sentenced to
an indeterminate state prison term of life without the
possibility of parole on the murder conviction and a
determinate state prison term of twenty-seven years and eight
months on the remaining convictions. Id. On
September 7, 2016, the California Court of Appeal struck the
arson conviction and associated prison term and affirmed the
judgment as modified. See ECF No. 1, pg. 2; ECF No.
17, pg. 2. The California Supreme Court denied review on
December 14, 2016. See ECF No. 1, pg. 2; ECF No. 17,
then filed three pro se state post-conviction collateral
challenges, all petitions for writs of habeas corpus.
First Action Sacramento Country Superior Court.
Filed December 12, 2017. Denied January 9, 2018.
Second Action California Court of Appeal. Filed
April 2, 2018. Denied April 13, 2018.
Third Action California Supreme Court. Filed June
10, 2018. Denied December 12, 2018.
Petitioner's federal petition was filed on February 14,
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). Where a petition for writ of certiorari is filed in
the United States Supreme Court, the one-year limitations
period begins to run the day after certiorari is denied or
the Court issued a merits decision. See Wixom v.
Washington, 264 F.3d 894, 897 (9th Cir. 2001). Where no
petition for review by the California Supreme Court is filed,
the conviction becomes final 40 days following the Court of
Appeal's decision, and the limitations period begins
running the following day. See Smith v. Duncan, 297
F.3d 809 (9th Cir. 2002). If no appeal is filed in the Court
of Appeal, the conviction becomes final 60 days after
conclusion of proceedings in the state trial court, and the
limitations period begins running the following day.
See Cal. Rule of Court 8.308(a). If the conviction
became final before April 24, 1996 - the effective date of
the statute of limitations - the one-year period begins to
run the day after the effective date, or April 25, 1996.
See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.
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, 128 S.Ct. 2 (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 ...