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Miles v. Sullivan

United States District Court, E.D. California

November 5, 2019

GENNEL EDWARD MILES, JR., Petitioner,
v.
W.J. SULLIVAN, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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 untimely.

         I. FACTUAL BACKGROUND

         Petitioner 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, pg. 2.

         Petitioner then filed three pro se state post-conviction collateral challenges, all petitions for writs of habeas corpus. Id.

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, 2019.

         II. DISCUSSION

         Federal 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).

         Where a 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. 1999).

         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, 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.

         There 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 ...


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